Insurance Contract Act 2008
Full citation: Insurance Contract Act of 23
November 2007 (Federal Law Gazette I page 2631), as last amended by Article 2
(79) of the Act of 22 December 2011 (Federal Law Gazette I page 3044)
By making a contract of insurance the undertakes to
cover a certain risk of the policyholder or a third party by paying a benefit
upon occurrence of the agreed insured event. The policyholder is obligated to
pay the agreed contribution (insurance premium) to the insurer.
(1) The contract of insurance may provide for the
insurance cover to commence prior to the date on which it was concluded
(retroactive insurance).
(2) If the insurer knows when submitting his
contractual acceptance that the occurrence of the insured event is impossible,
he shall not be entitled to an insurance premium. If the policyholder knows
when submitting his contractual acceptance that an insured event has already
occurred, the insurer shall not be obligated to effect payment.
(3) If the contract is concluded by a representative,
in the cases referred to in subsection (2) account shall be taken of both
the knowledge of the representative and that of the person he is representing.
(1) The insurer shall provide the policyholder with an
insurance policy in writing, upon his request as a document.
(2) If the contract is not concluded through one of
the insurer's domestic branch offices, the insurance policy must quote the
insurer's address and that of the branch office through which the contract was
made.
(3) If an insurance policy has been lost or destroyed,
the policyholder may demand that the insurer issue a new insurance policy. If
the insurance policy is subject to invalidation, the insurer shall only be
obligated to issue the new insurance policy after the invalidation.
(4) The policyholder may demand at any time that the
insurer provide him with copies of the declarations made in relation to the
contract of insurance. If the policyholder requires the copies in order to
undertake actions against the insurer which are bound by a specified time limit
and the insurer had not previously supplied them, the time limit shall be
suspended from the time when the insurer receives the request until such time
as the policyholder receives the copies.
(5) The costs of issuing a new insurance policy in
accordance with subsection (3) and the copies in accordance with
subsection (4) shall be borne by the policyholder and must be paid in
advance upon request.
(1) Section 808 of the German Civil Code shall
apply to an insurance policy issued as a document in the name of the bearer.
(2) If the contract provides for the insurer's
liability only upon the return of an insurance policy issued as a document and
if the policyholder declares that he is unable to return the insurance policy,
the publicly certified acknowledgement that the obligation has lapsed shall
suffice. The first sentence shall not apply if the insurance policy is subject
to invalidation.
(1) If the content of the insurance policy deviates
from the application made by the policyholder or the agreements made, the
deviation shall be deemed to be approved if the preconditions under
subsection (2) are met and the policyholder does not object in writing
within one month of receipt of the insurance policy.
(2) The insurer shall be obligated to indicate to the
policyholder when sending the insurance policy that deviations shall be deemed
to have been approved if the policyholder does not object in writing within one
month of receipt of the insurance policy. The policyholder's attention must be
drawn to any deviation and to the associated legal consequences by means of
conspicuous notes in the insurance policy.
(3) If the insurer has not fulfilled the obligations
under subsection (2), the contract shall be deemed to have been concluded
as per the content of the policyholder's application.
(4) An agreement by which the policyholder waives the
right to avoid the contract on account of a mistake shall be void.
(1) If the difficulty in assessing the insurance being
offered or the policyholder himself and his situation gives occasion thereto,
the insurer must ask him about his wishes and needs and, also bearing in mind
an appropriate relation between the time and effort spent in providing this
advice and the insurance premiums to be paid by the policyholder, the insurer shall
advise the policyholder and state reasons for each of the pieces of advice in
respect of a particular insurance. He shall document this, taking into account
the complexity of the contract of insurance being offered.
(2) Before the contract is concluded, the insurer
shall provide the policyholder with the advice in writing, clearly and
comprehensibly stating reasons. This information may be provided verbally if
the policyholder so wishes or if and insofar as the insurer guarantees
provisional cover. In such cases the information shall be provided in writing
to the policyholder without undue delay as soon as the contract has been made;
this shall not apply where a contract is not made and to contracts in respect
of provisional cover in the case of compulsory insurances.
(3) The policyholder may waive the right to advice and
documentation thereof in accordance with subsections (1) and (2) by a
separate written declaration in which the insurer explicitly indicates that
such waiving may have an unfavourable effect on his option for asserting a
claim for damages against the insurer in accordance with subsection (5).
(4) The obligation under subsection (1), first
sentence, shall also apply after the contract has been made for the entire term
of the insurance agreement insofar as it is clear that the insurer recognises
that the policyholder requires information and advice. The policyholder may in
individual cases waive the right to advice by written declaration.
(5) If the insurer breaches an obligation under subsections (1),
(2) or (4), he shall be liable to indemnify the policyholder for any loss or
damage resulting therefrom. This shall not apply if the insurer is not
responsible for the breach of obligation.
(6) Subsections (1) to (5) shall not apply to
contracts of insurance covering a jumbo risk within the meaning of
section 210 subsection (2) or if the contract is negotiated with the
policyholder by an insurance broker or if it is a distance contract within the
meaning of section 312b (1) and (2) of the German Civil Code.
(1) The insurer shall inform the policyholder in
writing of his terms of contract, including the general terms and conditions of
insurance, as well as the information set out in a statutory ordinance referred
to in subsection (2), in good time before the policyholder submits his
contractual acceptance. This information shall be provided clearly and
comprehensibly in keeping with the means of communication employed. If, upon
the request of the policyholder, the contract is concluded by telephone or
using another means of communication which does not permit the information to
be provided in writing prior to the policyholder's contractual acceptance, that
information must be provided without undue delay after the contract is made;
this shall also apply if the policyholder explicitly waives the right to
information by a separate written declaration prior to submitting his
contractual acceptance.
(2) The Federal Ministry of Justice shall be
authorised, with the consent of the Federal Ministry of Finance and in
consultation with the Federal Ministry for Food, Agriculture and Consumer
Protection, to determine the following by statutory ordinance without the
consent of the Bundesrat for the purposes of providing
comprehensive information to the policyholder:
1. which details of the contract, in
particular in respect of the insurer, the benefit offered, the general terms
and conditions of insurance and the of revocation shall be provided to the
policyholder,
2. which other information shall be
provided to the policyholder in respect of life insurance, in particular
regarding the expected benefits, their determination and calculation, regarding
a model calculation, and acquisition and distribution costs, insofar as these
are set off against insurance premiums, and regarding other costs,
3. which other information shall be
provided in respect of health insurance, in particular regarding the
development and form of insurance premiums, and the acquisition and distribution
costs,
4. what information shall be provided to
the policyholder if the insurer has contacted him by telephone, and
When determining the notifications in accordance with
the first sentence, the information required in accordance with Council
Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations
and administrative provisions relating to direct insurance other than life
insurance and amending Directives 73/239/EEC and 88/357/EEC (OJ EC L 228 p. 1),
Directive 2002/65/EC of the European Parliament and of the Council of 23
September 2002 concerning the distance marketing of consumer financial services
and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC
(OJ EC L 271 p. 16), as well as Directive 2002/83/EC of the European Parliament
and of the Council of 5 November 2002 concerning life insurance (OJ EC L 345 p.
1), shall be observed.
(3) The statutory ordinance referred to in
subsection (2) shall, furthermore, specify what information the insurer
must communicate in writing throughout the policy period; this shall in
particular apply in the case of changes to information previously supplied,
further in respect of health insurance in the event of increases in insurance
premiums and regarding the possibility of changing tariffs, as well as in
respect of life insurance with surplus sharing regarding the development of the
policyholder's entitlements.
(4) The policyholder may at any time throughout the
policy period demand that the insurer send him the terms of contract, including
the general terms and conditions of insurance, in the form of a document; the
costs of the first dispatch shall be borne by the insurer.
(5) Subsections (1) to (4) shall not apply to
insurance contracts covering a jumbo risk within the meaning of
section 210 subsection (2). If under such a contract the policyholder
is a natural person, the insurer shall inform him in writing prior to the
conclusion of the contract of applicable law and the competent supervisory
body.
(1) The policyholder may revoke his contractual
agreement within 14 days. The policyholder shall declare his revocation to the
insurer in writing, but need not state any reason; timely dispatch shall
suffice for compliance with the time limit.
(2) The revocation period shall begin at such time as
the policyholder receives the following documents in writing:
1. the insurance policy and the terms of
contract, including the general terms and conditions of insurance, as well as
the other information in accordance with section 7 (1) and (2), and
2. a clearly worded instruction regarding
the right of revocation and the legal consequences of the revocation which
makes clear to the policyholder his rights commensurate with the requirements
of the means of communication employed, and the names of the person to whom the
revocation is to be declared, with an address at which documents may be served,
as well as a note making reference to the commencement of the revocation period
and to the rules set out in subsection (1), second sentence.
2. to contracts of insurance for
provisional cover, unless they are distance contracts within the meaning of
section 312b (1) and (2) of the German Civil Code,
3. to contracts of insurance with pension
funds based on the provisions set out in a contract of employment, unless they
are distance contracts within the meaning of section 312b (1) and (2) of
the German Civil Code,
4. to contracts of insurance covering a
jumbo risk within the meaning of section 210 subsection (2).
The right of revocation shall cease to apply if the
contract has been wholly fulfilled by both sides at the explicit request of the
policyholder before the policyholder has exercised his right of revocation.
(4) Notwithstanding subsection (2), first
sentence, the revocation period in e-commerce shall not commence until the
obligations set out in section 312g (1), first sentence, of the German
Civil Code have also been fulfilled.
(5) The instruction to be given in accordance with
subsection (2), first sentence, no. 2. shall be deemed to meet the
requirements stipulated therein if the model of the Annex to the present Act is
used in text form. The insurer may deviate from the model in terms of format
and font size, subject to subsection (2), first sentence, no. 2, and may
insert addenda such as the firm name or a mark of the insurer.
If the policyholder exercises his right of revocation
in accordance with section 8 (1), the insurer shall only be obligated to
repay that share of the premiums paid for the period after receipt of the
revocation if the policyholder has been instructed in accordance with
section 8 (2), first sentence, no. 2 about his right of revocation, the
legal consequences of revocation and the contribution to be paid, and he has
agreed that the insurance cover commences prior to the end of the revocation
period; the duty to reimburse shall be fulfilled without undue delay, at the
latest 30 days after receipt of the revocation. If no note was provided as
required under the first sentence, the insurer shall in addition reimburse the
insurance premiums paid for the first year of insurance cover; this shall not
apply if the policyholder has claimed benefits on the basis of the insurance
policy.
If the length of the insurance cover is determined
according to days, weeks, months or a period of several months, the insurance
cover shall commence at the start of the day on which the contract is
concluded; it shall expire at the end of the last day of the policy period.
(1) If, in the case of an insurance agreement for a
fixed period, the possibility of renewal is agreed in advance in case the
insurance agreement is not terminated prior to the end of the policy period,
the renewal shall be void insofar as it refers to a period of more than one
year.
(2) Where an insurance agreement is concluded for an
unlimited period, both contracting parties may only terminate the agreement to
the end of the current period of insurance. They may agree to waive the right
of termination for no more than two years.
(3) The period of notice must be the same for both
contracting parties; it may not be less than one month and no more than three
months.
(4) A policyholder may terminate a contract of
insurance concluded for a period of more than three years to the end of the
third or each successive year, subject to a notice period of three months.
The period of insurance shall be one year unless the
insurance premium is determined for shorter periods.
(1) If the policyholder has not informed the insurer
of a change of address, the dispatch of a letter sent recorded delivery to the
policyholder's last known address shall suffice in respect of a declaration of
intention to be made to the policyholder. The declaration shall be deemed to
have been received three days after the letter was dispatched. The first and
second sentences shall apply mutatis mutandis in respect of a change of the
policyholder's name.
(2) If the policyholder has taken out the insurance in
his business enterprise, subsection (1), first and second sentences, shall
apply mutatis mutandis in the event of his business establishment relocating.
(1) The insurer shall be liable to pay a cash benefit
when enquiries necessary to establish the occurrence of the insured event and
the extent of the insurer's liability have been concluded.
(2) If these enquiries have not been concluded one
month after notification has been given of the occurrence of the insured event,
the policyholder may demand part payment in the amount which the insurer will
at least be expected to pay. The time limit shall be suspended for as long as
the enquiries cannot be concluded on account of the fault of the policyholder.
(3) An agreement on account of which the insurer is
released from the obligation to pay interest on arrears shall be void.
Where a claim arising from a contract of insurance has
been registered with the insurer, the period of limitation shall be suspended
until such time as the applicant has received the insurer's decision in
writing.
(1) If insolvency proceedings have been opened against
the assets of the insurer, the insurance agreement shall end one month after
proceedings are opened; until such time it shall remain effective against the
insolvency estate.
(2) The provisions of the Insurance Supervision Act in
respect of the effects of the opening of insolvency proceedings shall remain
unaffected.
Where the insurance cover relates to things exempt
from seizure, a claim arising from the contract of insurance may only be
assigned to those of the policyholder's creditors who have provided him with
other things to replace the destroyed or damaged things.
Agreements deviating from section 3 (1) to (4),
section 5 (1) to (3), sections 6 to 9, section 11 (2) to (4),
section 14 (2), first sentence, and section 15 to the detriment of
the policyholder shall not be permitted.
(1) The policyholder shall disclose to the insurer
before making his contractual acceptance the risk factors known to him which
are relevant to the insurer's decision to conclude the contract with the agreed
content and which the insurer has requested in writing. If, after receiving the
policyholder's contractual acceptance and before accepting the contract, the
insurer asks such questions as are referred to in the first sentence, the
policyholder shall also be under the duty of disclosure as regards these
questions.
(2) If the policyholder breaches his duty of
disclosure under subsection (1), the insurer may withdraw from the
contract.
(3) The insurer's right to withdraw from the contract
shall be ruled out if the policyholder breached his duty of disclosure neither
intentionally nor by acting with gross negligence. In such cases the insurer
shall have the right to terminate the contract subject to a notice period of
one month.
(4) The insurer's right to withdraw from the contract
on account of grossly negligent breach of the duty of disclosure and his right
to terminate the contract in accordance with subsection (3), second
sentence, shall be ruled out if he would also have concluded the contract in
the knowledge of the facts which were not disclosed, albeit with other
conditions. The other conditions shall become an integral part of the contract
with retroactive effect upon the request of the insurer; in the case of a
breach of duty for which the policyholder does not bear responsibility they
shall become an integral part of the contract as of the current period of
insurance.
(5) The insurer shall only be entitled to the rights
under subsections (2) to (4) if he has instructed the policyholder in
writing in separate correspondence of the consequences of any breach of the
duty of disclosure. These rights shall not exist if the insurer was aware of
the disclosed risk factors or the incorrectness of the disclosure.
(6) In the case of subsection (4), second
sentence, leading to an increase in the insurance premium of more than 10 per
cent on account of an alteration of the contract, or if the insurer refuses to
cover the risk for the undisclosed circumstance, the policyholder may terminate
the contract without prior notice within one month of receipt of the insurer's
communication. The insurer shall notify the policyholder of this right in the
communication.
If the contract is concluded by a person representing
the policyholder, both the representative's knowledge and fraudulent conduct as
well as the policyholder's knowledge and fraudulent conduct shall be taken into
account in the application of section 19 (1) to (4) and section 21
(2), second sentence, and subsection (3), second sentence. The
policyholder may only invoke the duty of disclosure not having been breached
intentionally or with gross negligence if neither the representative nor the
policyholder has incurred responsibility for intent or gross negligence.
(1) The insurer must assert the rights afforded him in
accordance with section 19 (2) to (4) in writing within one month. The
period shall commence at such time as the insurer learns of the breach of the
duty of disclosure on which the right he is asserting is founded. When
exercising his rights, the insurer shall disclose the circumstances on which
his declaration is based; he may subsequently disclose further circumstances as
grounds for his declaration if the time limit in accordance with the first
sentence has not yet expired.
(2) In the event of a withdrawal in accordance with
section 19 (2) after the occurrence of the insured event, the insurer
shall not be obligated to effect payment, unless the breach of the duty of
disclosure refers to a circumstance which is neither responsible for the
occurrence or for the establishment of the occurrence of the insured event nor
for the establishment or the extent of the insurer's liability. If the
policyholder has fraudulently breached the duty of disclosure, the insurer
shall not be obligated to effect payment.
(3) The rights of the insurer in accordance with
section 19 (2) to (4) shall lapse five years after the contract expires;
this shall not apply to insured events which occurred prior to the expiry of
this time limit. If the policyholder has breached the duty of disclosure
intentionally or by acting fraudulently, this period shall be ten years.
The right of the insurer to avoid the contract on
account of fraudulent misrepresentation shall remain unaffected.
(1) After submitting his contractual acceptance the
policyholder may not aggravate the risk insured or permit its aggravation by a
third party without the consent of the insurer.
(2) If the policyholder recognises after the fact that
he has aggravated or permitted an aggravation of the risk insured without the
consent of the insurer, he must disclose the aggravation of the risk insured to
the insurer without undue delay.
(3) If, after the policyholder has submitted his
contractual acceptance, an aggravation of the risk insured occurs
notwithstanding his intention, he must disclose the aggravation to the insurer
without undue delay as soon as he has learned thereof.
(1) If the policyholder breaches his duty under
section 23 (1), the insurer may terminate the contract of insurance
without prior notice, unless the insurer has breached the duty neither
intentionally nor by acting with gross negligence. If the breach is based on
ordinary negligence, the insurer may terminate the contract subject to a notice
period of one month.
(2) If an aggravation of the risk insured in
accordance with section 23 (2) and (3) occurs, the insurer may terminate
the contract subject to a notice period of one month.
(3) The right of termination in accordance with
subsections (1) and (2) shall lapse if it is not exercised within one
month after the insurer learns of the aggravation of the risk insured or if the
state of affairs which existed prior to the aggravation is re-established.
(1) Rather than terminating the contract of insurance
the insurer may, from such time as the aggravation of the risk insured
occurred, demand an insurance premium commensurate with the aggravation of the
risk insured in accordance with his business principles, or may exclude
insurance cover for the aggravated risk. Section 24 (3) shall apply
mutatis mutandis in respect of the lapse of this right.
(2) If the insurance premium increases by more than 10
per cent in consequence of an aggravation of the risk insured or the insurer
excludes insurance cover for the aggravated risk, the policyholder may
terminate the contract without prior notice within one month of receipt of the
communication from the insurer. The insurer must inform the policyholder of
this right in his communication.
(1) If the insured event occurs after an aggravation
of the risk insured, the insurer shall not be liable if the policyholder
intentionally breached his duty under section 23 (1). In the event of a
grossly negligent breach, the insurer shall be entitled to reduce his benefits
payable commensurate with the severity of the policyholder's fault; the burden
of proof that there was no gross negligence is on the policyholder.
(2) In the cases of aggravation of insured risk in
accordance with section 23 (2) and (3), the insurer shall not be obligated
to effect payment if the insured event occurs later than one month after the
time when the insurer should have received notification, unless the insurer was
aware of the aggravation of the risk insured at that point in time. He shall be
liable if the breach of the duty of disclosure in accordance with
section 23 (2) and (3) was not intentional; in the event of a grossly
negligent breach, subsection (1), second sentence, shall apply.
(3) Notwithstanding subsections (1) and (2), first
sentence, the insurer shall be obligated to effect payment
1. if the aggravation of the risk insured
was not the cause of the occurrence of the insured event or of the extent of
the liability, or
2. if at the time of the occurrence of the
insured event the insurer's termination period had expired and the contract was
not terminated.
Sections 23 to 26 shall not apply if the
aggravation of the risk insured is only immaterial or if, based on the
circumstances, it can be deemed to have been agreed that the aggravation is
also to be covered.
(1) In the event of the non-observance of an
incidental obligation which the policyholder must fulfil vis-à-vis the insurer
prior to the occurrence of an insured event, the insurer may terminate the
contract without prior notice within one month after learning of the
non-observance, unless the non-observance was not intentional or based on gross
negligence.
(2) Where the contract provides that the insurer is
not obligated to effect payment in the event of the non-observance of an
incidental obligation on the part of the policyholder, he shall be released
from the liability if the policyholder intentionally breached the obligation.
In the case of grossly negligent non-observance of the obligation, the insurer
shall be entitled to reduce any benefits payable commensurate with the severity
of the policyholder's fault; the burden of proof that there was no gross
negligence shall be on the policyholder.
(3) Notwithstanding subsection (2), the insurer
shall be liable insofar as the non-observance of the obligation neither caused
the occurrence or the establishment of the insured event nor the establishment
or the extent of the insurer's obligation to effect payment. The first sentence
shall not apply if the policyholder fraudulently breached the obligation.
(4) The condition on which the insurer's entire or
partial release from liability in accordance with subsection (2) is based
shall, in the event of a violation of an existing duty to provide information
or duty of disclosure after the occurrence of an insured event, be the fact
that the insurer instructed the policyholder in separate correspondence and in
writing of this legal consequence.
(5) An agreement based on which the insurer is
entitled to withdraw from the contract in the event of the non-observance of an
incidental obligation shall be void.
(1) If the conditions according to which the insurer
is entitled, in line with the provisions set out in this Division, to withdraw
from or to terminate the contract are only met with regard to a part of the
objects or persons to which the contract refers, the insurer shall only have
the right to withdraw from or to terminate the contract for the remainder if it
is to be assumed that the insurer would not have concluded the contract for
this part alone with the same conditions.
(2) If the insurer exercises his right to withdraw
from or to terminate the contract in respect of a part of the objects or
persons, the policyholder shall be entitled to terminate the insurance agreement
regarding the remainder. The termination must be declared at the latest at the
end of the period of insurance in which the insurer's withdrawal or termination
becomes effective.
(3) If the conditions under which the insurer is
partially or wholly released from liability due to a breach of the provisions
regarding aggravation of the risk insured are only met regarding a part of the
objects or persons to which the insurance refers, subsection (1) shall
apply mutatis mutandis to the release from liability.
(1) The policyholder shall notify the insurer of the
occurrence of the insured event without undue delay after he has learned
thereof. If a third party is entitled to the right to the insurer's benefit,
the third party shall also be obligated to notify the insurer.
(2) An insurer may not invoke an agreement according
to which the insurer is not obligated to effect payment in the event of the
breach of the duty of notification in accordance with subsection (1),
first sentence, if he learns about the occurrence of an insured event in good
time by other means.
(1) After the occurrence of an insured event, the
insurer may demand that the policyholder disclose to him all the information necessary
to establish the occurrence of the insured event or the extent of the insurer's
liability. The insurer may demand proof to the extent that the policyholder may
be reasonably expected to obtain such proof.
(2) If a third party has the right to receive benefits
from the insurer, he must also fulfil the obligations under
subsection (1).
Agreements deviating from sections 19 to 28 (4)
and section 31 (1), second sentence, to the detriment of the policyholder
shall not be permitted. However, agreement may be reached to the effect that
any notification to which the policyholder is obligated in accordance with the
provisions of this Division must be made in writing.
(1) The policyholder must pay a single premium or,
where payment of recurrent premiums has been agreed, must pay the first premium
without delay 14 days after receipt of the insurance policy.
(2) If the insurer previously collected the premium,
the policyholder shall not be obligated to transfer the premium until requested
to do so in writing by the insurer.
(1) The insurer must accept insurance premiums due to
him or other payments to which he is entitled from the insured person on the
basis of the contract if the insurance is taken for the account of a third
party from a beneficiary who has acquired the right to the insurer's benefits,
as well as from a lien creditor even if he could refuse to accept the payment
in accordance with the provisions of the German Civil Code.
(2) A right of lien on the insurance claim can also be
asserted on the basis of the contributions including all interest payments
which the lien creditor has used to pay premiums or other payments to which the
insurer is entitled on the basis of the contract.
The insurer may offset a due insurance premium or any
other due claim under the contract against a claim arising on the basis of the
insurance even if a third party and not the policyholder is entitled to the
claim.
(1) The place of performance for payment of the
insurance premium shall be the policyholder's respective place of residence.
However, the policyholder must transfer the insurance premium to the insurer at
his own risk and at his own cost.
(2) If the policyholder has taken out the insurance in
his business enterprise and his business establishment is located elsewhere,
the place of performance shall be the place of the business establishment, and
not his place of residence.
(1) If the single premium or the first premium is not
paid in good time, the insurer shall be entitled to withdraw from the contract
as long as the payment has not been made, unless the policyholder is not
responsible for the non-payment.
(2) If the single premium or first premium has not
been paid when the insured event occurs, the insurer shall not be obligated to
effect payment, unless the policyholder is not responsible for the non-payment.
The insurer shall only be released from liability if he had informed the
policyholder of the legal consequence of non-payment of the premium in writing
in a separate communication or by means of a conspicuous note in the insurance
policy.
(1) If a subsequent premium is not paid in good time,
the insurer may set the policyholder a payment deadline of no less than two
weeks at his expense and in writing. The setting of the deadline shall only be
effective if it details the individual amounts of the premium which are in
arrears, the interest and costs, as well as quoting the legal consequences
associated in accordance with subsections (2) and (3)with expiry of the
time limit; in the case of consolidated contracts, the amounts must be quoted
separately.
(2) If the insured event occurs after the deadline
expires, and if the policyholder is in arrears as regards the payment of the
premium or of the interest or costs, the insurer shall not be obligated to
effect payment.
(3) The insurer may, after the deadline expires,
terminate the contract without prior notice insofar as the policyholder is in
arrears as regards the payment of the due amounts. The termination can be
linked to the setting of the payment deadline in such a way that it becomes
effective once the deadline expires if the policyholder is in arrears as
regards the payment at that point in time; the policyholder must be explicitly
informed of this in the termination. The termination shall become void if the
policyholder makes the payment within one month after the contract has been
terminated or, if it has been linked to the setting of a deadline, within one
month after the deadline expires; subsection (2) shall remain unaffected.
(1) In the event of the termination of the insurance
agreement before the end of the period of insurance, the insurer shall be
entitled only to that share of the premium for that period of insurance which
corresponds to the period in which the insurance cover existed. If the
insurance agreement is terminated on account of withdrawal in accordance with
section 19 (2) or on account of avoidance by the insurer due to fraudulent
misrepresentation, the insurer shall be entitled to the insurance premium up
until such time as the declaration of withdrawal or avoidance becomes
effective. If the insurer withdraws on the basis of section 37 (1), he may
demand an appropriate fee.
(2) If the insurance agreement ends in accordance with
section 16, the policyholder may demand the repayment of that share of the
premium which corresponds to the period following the termination of the
insurance agreement, minus the costs arising for that period.
(1) If the insurer increases the premium on the basis
of an adjustment clause without the scope of the insurance cover changing in
relation thereto, the policyholder may terminate the contract with immediate
effect within one month of receipt of the communication from the insurer, at
the earliest however at such time as the increase in the insurance premium
becomes effective. The insurer must inform the policyholder of his right to
terminate the contract in the communication. The policyholder must receive the
communication at the latest one month before the increase in the insurance
premium becomes effective.
(2) Subsection (1) shall apply mutatis mutandis
if the insurer reduces the scope of the insurance cover on the basis of an
adjustment clause without reducing the premium accordingly.
If a higher premium has been agreed on account of
certain risk-aggravating circumstances and these circumstances have ceased to
exist or become immaterial after the policyholder has submitted an application
or after the contract has been made, the policyholder may demand that the
premium be reduced commensurately from such time as the insurer is in receipt
of the demand. This shall also apply if the assessment of the higher insurance
premium was occasioned by incorrect statements made on the basis of a mistake
on the part of the policyholder concerning such a circumstance.
Agreements deviating from section 33 (2) and
sections 37 to 41 to the detriment of the policyholder shall not be
permitted.
(1) The policyholder may make the contract of
insurance in his own name for the account of another with or without naming the
insured third party (insurance for the account of a third party).
(2) If the contract of insurance is made for another,
it is assumed in cases of doubt, even if the third party is named, that the
policyholder is not acting as his agent but in his own name for the account of
a third party.
(3) If the circumstances do not indicate that the
contract of insurance is to be concluded for another, it is deemed to have been
made for the policyholder's own account.
(1) In the case of insurance for the account of a
third party, the insured person holds the rights resulting from the contract of
insurance. However, only the policyholder may demand that the insurance policy
be sent to him.
(2) The insured person may only lay claim to his
rights without the agreement of the policyholder and assert these rights in
court if he is in possession of the insurance policy.
(1) The policyholder may dispose of the rights to
which the insured person is entitled on the basis of the contract of insurance
in his own name.
(2) If an insurance policy has been issued, the
policyholder shall only be authorised to receive benefits from the insurer and
to assign the rights of the insured person without the agreement of the insured
person if he is in possession of the insurance policy.
(3) The insurer shall only be liable towards the
policyholder if the insured person has given his consent to the insurance.
The policyholder shall not be obligated to hand over
the insurance policy to the insured person or, in the event of insolvency
proceedings having been opened with regard to his assets, to the insolvency
estate, until his claims against the insured person have been satisfied with regard
to the insured thing. He may satisfy these claims from the claim for
compensation against the insurer and, after it has been collected, from the
compensation paid before the insured person and the latter’s creditors.
(1) Insofar as the knowledge and conduct of the
policyholder are of legal significance, in the case of insurance for the account
of a third party account shall also be taken of the knowledge and conduct of
the insured person.
(2) Account shall not be taken of the knowledge of the
insured person if the contract was made without his knowledge or it was
impossible or unreasonable for him to inform the policyholder in good time. The
insurer need not accept the objection cited against him that the contract
was made without the knowledge of the insured person if the policyholder made
the contract without being instructed to do so by the insured person and did
not indicate to the insurer at the time the contract was made that he was
concluding the contract without having being instructed to do so by the insured
person.
If the insurance is taken out for the account of
"whom it may concern" or if the contract provides in another manner
that it is to remain unspecified whether an own interest or the interest of
another is to be insured, sections 43 to 46 shall apply if it can be
concluded from the circumstances that the interest of another is insured.
(1) If the essential content of a contract of
insurance refers to the insurer granting provisional cover, the contracting
parties may agree that the insurer shall only send the policyholder the terms
of contract and the information in accordance with section 7 (1) in
conjunction with the statutory ordinance referred to in section 7 (2) upon
request and at the latest with the insurance policy. The first sentence shall
not apply to a distance contract within the meaning of section 312b (1)
and (2) of the German Civil Code.
(2) If the general terms and conditions of insurance
are not sent to the policyholder when the contract is made, the conditions
normally applied by the insurer at that point in time shall become an integral
part of the contract for provisional cover, in the absence of such conditions
those conditions applied by the insurer to the main contract even without an
explicit note to that effect. In cases of doubt regarding which conditions
apply to the contract, the conditions applied by the insurer which are the most
favourable for the policyholder at the time of the conclusion of the contract
shall become an integral part of the contract.
If, in the event of the non-formation of the main
contract, the policyholder is compelled to pay an premium for provisional
cover, the insurer shall be entitled to that share of the premium commensurate
with the period of the provisional cover which would be payable in the event of
the main contract being formed.
(1) The commencement of the insurance cover may be
made dependent on the payment of the premium insofar as the insurer has drawn
the policyholder's attention to this condition in writing in a separate
communication or by means of a conspicuous note in the insurance policy.
(2) Agreements deviating from subsection (1) to
the detriment of the policyholder shall not be permitted.
(1) The contract for provisional cover shall expire at
the latest at such time as a similar insurance cover begins based on a main
contract made by the policyholder or another contract for provisional cover. If
the commencement of the insurance cover under the main contract or the other
contract for provisional cover is made dependent on the payment of the premium
by the policyholder, the contract for provisional cover shall expire in the
event of non-payment or delayed payment of the premium notwithstanding the
first sentence at the latest at such time as the policyholder is in arrears as
regards the payment of the insurance premium, provided that the insurer
informed the policyholder of this legal consequence in writing in a separate
communication or by means of a conspicuous note in the insurance policy.
(2) Subsection (1) shall not apply if the
policyholder concludes the main contract or the other contract for provisional
cover with another insurer. The policyholder must inform the previous insurer,
without undue delay, of the fact that the contract has been concluded.
(3) If the main contract is not concluded with the
insurer with whom the contract for provisional cover is made because the
policyholder withdraws his contractual acceptance in accordance with
section 8 or submits an objection in accordance with section 5
(1) and (2), the contract for provisional cover shall expire at the latest when
the insurer receives the withdrawal or objection.
(4) If the insurance agreement was entered into for an
indefinite period, each of the contracting parties may terminate the contract
without prior notice. However, the insurer's termination shall not become
effective until two weeks after receipt.
(5) Agreements deviating from subsections (1) to
(4) to the detriment of the policyholder shall not be permitted.
If a contract is made in such a manner that, at the
time when the contract is concluded, only the class of insured interest is
designated and it is only specified to the insurer in detail once the contract
has been concluded (open policy), the policyholder shall be obligated either to
give notice without undue delay of the individual insured risks or, if the
insurer has waived that right, of the agreed basis on which the insurance
premium is to be calculated or, if this has been agreed, to apply for a cover
note in each respective case.
(1) If the policyholder has failed to give notice of
an insured risk or of the agreed basis on which the premium is to be
calculated, or to apply for the cover note or has made a mistake in so doing,
the insurer shall not be obligated to effect payment. This shall not apply if
the policyholder has neither violated the duty to give notice and file an
application intentionally or by acting with gross negligence and the notice
given or the application submitted or the mistake is corrected without undue
delay after he learns of the mistake.
(2) If the policyholder intentionally violates the
duty to give notice and file an application, the insurer may terminate the
contract without notice. The insurance of individual risks for which the
insurance cover has commenced shall continue if no other agreements have been
reached which extend beyond the end of the open policy until such time as the
agreed term of the insurance of these individual risks ends. The insurer may,
further, demand payment of the insurance premium which would have had been
payable up until the termination becomes effective if the policyholder had met
the duty to give notice.
(1) If in the case of an open policy an insurance
policy has been issued for an individual risk (individual policy) or a
certificate of insurance has been issued, the insurer shall only be liable upon
presentation of the document. He is released from obligation by performance to
the bearer of the document.
(2) If the document has been lost or destroyed, the
insurer shall not be liable until the document has been declared invalid or a
security has been paid; no security payment by guarantors shall be permitted.
This shall also apply to the insurer's obligation to issue a replacement
certificate.
(3) The content of the individual policy or a
certificate of insurance shall be deemed to have been approved by the
policyholder notwithstanding section 5 if the policyholder does not revoke
it without undue delay after receipt of the certificate. The right of the
policyholder to avoid the approval on account of a mistake shall remain unaffected.
(1) Notwithstanding section 19 (2), the insurer
shall not be permitted to rescind in the event of a breach of the duty of
disclosure; the insurer may terminate the contract within one month after
learning of the non-disclosure or incorrect disclosure of the circumstance, and
may refuse performance. The insurer shall remain obligated to effect payment if
the non-disclosure or incorrect disclosure of the circumstance was not the
cause of the occurrence of the insured event or of the extent of the obligation
to effect payment.
(2) If the insurer refuses performance, the
policyholder may terminate the contract. The right to terminate the contract
lapses if it is not exercised within one month of the time when the
policyholder receives the insurer's decision to refuse performance.
(2) Where the policyholder has not informed the
insurer of an aggravation of the risk insured, the insurer shall not be liable
if the insured event occurs after the time when the insurer should have
received the notification. He shall only be obligated to effect payment
1. if he knew about the aggravation of the
risk insured at such time as he should have been notified thereof,
2. if the duty of disclosure was
breached neither intentionally nor by acting with gross negligence, or
3. insofar as the aggravation of the
risk insured was not the cause of the occurrence of the insured event or the
extent of the liability.
(3) Notwithstanding section 24, the insurer shall
not be entitled to terminate the contract on account of an aggravation of the
risk insured.
(1) In the case of an open policy, where the
policyholder culpably fails to fulfil an incidental obligation to be fulfilled
prior to the occurrence of an insured event, the insurer shall not be liable in
respect of an insured individual risk to which the breached incidental
obligation applies.
(2) In the case of culpable non-observance of an
incidental obligation, the insurer may terminate the contract within one month
of learning of the non-observance, subject to a notice period of one month.
(1) 'Insurance intermediary' within the meaning of
this Act shall be insurance agents and insurance brokers.
(2) 'Insurance agent' within the meaning of this Act
shall be anyone contracted by an insurer or insurance agent to arrange or
conclude contracts of insurance on a commercial basis.
(3) 'Insurance broker' within the meaning of this Act
shall be anyone who contracts to arrange or conclude contracts of insurance for
a client on a commercial basis without having being contracted to do so by an
insurer or an insurance agent. An insurance broker shall be deemed to be anyone
giving the person wishing to take out insurance the impression that he is
providing the services of an insurance broker within the meaning of the first
sentence above.
(4) 'Insurance adviser' within the meaning of this Act
shall be anyone advising third parties on a commercial basis in respect of
agreeing, amending or examining contracts of insurance or in respect of making
claims arising under contracts of insurance upon the occurrence of an insured
event or anyone representing the policyholder out of court vis-à-vis the
insurer without receiving an economic benefit from an insurer or without being
dependent on him in any other manner.
(1) The insurance broker shall be obligated to base
his advice on a sufficient number of contracts of insurance and insurers
available on the market so that he is in a position to make his recommendation,
based on professional criteria, regarding which contract of insurance is suited
to meeting the needs of the person wishing to take out insurance. This shall
not apply if he explicitly informs the person wishing to take out insurance in
individual cases prior to contractual acceptance of the limited
selection of insurers and contracts.
(2) An insurance broker who informs a person wishing
to take out insurance of the limited selection in accordance with
subsection (1), second sentence, and an insurance agent must inform the
person wishing to take out insurance on which market and information basis they
are providing their services, and must state the names of the insurers on the
basis of which they are giving advice. The insurance agent must also name the
insurer on behalf of whom he is working and whether he is working exclusively
for him.
(3) The person wishing to take out insurance may waive
the right to the notifications and information in accordance with
subsection (2) by separate written declaration.
(1) If the difficulty of assessing the insurance being
offered or the person wishing to take out insurance himself and his situation
gives occasion thereto, the insurance intermediary must ask the person wishing
to take out insurance about his wishes and needs and, also bearing in mind the
relations between the time and effort spent providing the advice and the
premium to be paid by the policyholder, must advise the person wishing to take
out insurance and state reasons for each piece of advice given in respect of a
particular insurance. He must document this in accordance with section 62,
taking account of the complexity of the contract of insurance being offered.
(2) The person wishing to take out insurance may waive
the right to the advice or documentation in accordance with subsection (1)
by separate written declaration in which he is explicitly informed by the
insurance intermediary of the fact that a waiver of the right may have a
unfavourable effect on the option the person wishing to take out insurance has
of asserting a claim for damages against the insurance intermediary in accordance
with section 63.
(1) The policyholder shall be provided, in a clear and
comprehensible written form, with the information in accordance with
section 60 (2) before submitting his contractual acceptance, and the
information in accordance with section 61 (1) before the contract is
concluded.
(2) The information in accordance with
subsection (1) may be given orally if the person wishing to take out
insurance so wishes, or if and insofar as the insurer grants provisional cover.
In such cases the information must be provided to the person wishing to take
out insurance in writing without undue delay after the contract has been made,
at the latest together with the insurance policy; this shall not apply to
contracts for provisional cover for compulsory insurances.
The insurance intermediary shall be obligated to
compensate for loss incurred by the person wishing to take out insurance on
account of a breach of one of the duties under section 60 or
section 61. This shall not apply if the insurance intermediary is not
responsible for the breach of duty.
The person wishing to take out insurance must
authorise the insurance intermediary in writing by separate declaration to
accept benefits from the insurer which the latter must pay to the policyholder
on the basis of a contract of insurance.
Sections 60 to 63 shall not apply to the
arranging of contracts of insurance for jumbo risks within the meaning of
section 210 subsection (2).
Sections 60 to 64, section 69 (2) and
section 214 shall not apply to insurance intermediaries within the meaning
of section 34d (9) no. 1 of the Trade Regulation Act.
Agreements deviating from sections 60 to 66 to
the detriment of the policyholder shall not be permitted.
The provisions set out in section 60 (1), first
sentence, section 61 (1) and sections 62 to 65 and section 67
applicable to insurance brokers shall apply mutatis mutandis to insurance
advisers. Further duties of the insurance adviser resulting from the
contractual relationship shall remain unaffected.
1. taking receipt of applications for the
purposes of concluding a contract of insurance and its revocation, as well as
declarations made prior to the making of a contract and other declarations made
by the policyholder,
2. taking receipt of applications for the
renewal of or amendment to a contract of insurance and its revocation,
termination, rescission and other declarations relating to the insurance
agreement, as well as any information to be provided by the policyholder
throughout the policy period, and
3. passing on to the policyholder any
insurance policies or renewal policies drawn up by the insurer.
(2) The insurance agent shall be deemed to have power
of attorney to accept payments which the policyholder makes in
connection with the arranging or conclusion of a contract of insurance.
The policyholder shall only accept a restriction to this power of attorney to
his detriment if he was aware of the restriction when making the payment or was
not aware of it as a consequence of gross negligence.
(3) The burden of proof regarding the submission or
the content of the application or another declaration of intent in accordance
with subsection (1) nos. 1, 2 shall be on the policyholder. The burden of
proof regarding any breach of the duty of disclosure or a duty on the part of
the policyholder shall be on the insurer.
If the knowledge of the insurer is of relevance in
accordance with this Act, the knowledge of the insurance agent shall be
equivalent to the knowledge of the insurer. This shall not apply to the
knowledge of the insurance agent gained when not engaged in his activity as
agent and not connected in any manner to the contract of insurance in question.
If the insurance agent is authorised to acquire
contracts of insurance, he shall also be authorised to agree amendments or
extensions to such contracts and to make declarations of termination and withdrawal.
Any restriction of the power of agency to which the
insurance agent is entitled in accordance with section 69 and
section 71 based on the general terms and conditions of insurance shall be
void vis-à-vis the policyholder and third parties.
Sections 69 to 72 shall apply mutatis mutandis to
an insurer's employees who are contracted to arrange or conclude contracts of
insurance and to persons working independently as agents in the arranging or
concluding contracts of insurance but not on a commercial basis.
(1) If the sum insured considerably exceeds the value
of the insured interest (insurable value), each contracting party may request
that the sum insured be reduced with immediate effect in order to eliminate the
overinsurance, thereby also reducing the premium proportionally.
(2) If the policyholder concludes the contract with
the intention of gaining an illegal pecuniary benefit on account of the
overinsurance, the contract shall be void; the insurer shall be entitled to the
premium up until such time as he learned of the circumstances establishing
nullity.
If the sum insured is considerably less than the
insurable value upon the occurrence of the insured event, the insurer shall
only be liable in the proportion that the sum insured bears to this value.
The insurable value may be determined by agreeing a
certain amount (agreed value). The agreed value shall also be deemed to be the
value of the insured interest upon occurrence of the insured event, unless it
considerably exceeds the actual insurable value at that point in time. If the
sum insured is less than the agreed value, the insurer shall only be liable to
compensate the loss in the proportion that the insurable value bears to the
agreed value, even if the agreed value is considerably overstated.
(1) Anyone who insures the same interest against the
same risk with several insurers shall be obligated to inform each insurer about
the other insurances without undue delay. In his communication he shall name
the other insurers and the sum insured.
(2) If the profit lost in respect of the same interest
is insured with one insurer but other loss is insured with another insurer,
subsection (1) shall apply mutatis mutandis.
(1) If one interest is insured against the same risk
with several insurers and the sums insured exceed the insurable value or for
other reasons the sum of damages which would have to be paid by the insurer if
the other insurance did not exist exceeds the total loss (multiple insurance),
the insurers are liable as joint and several debtors in such a manner that each
insurer must pay the sum in accordance with his contract, but the policyholder
cannot demand more than the total amount of the loss.
(2) As regards the insurers, they shall be liable to
pay in proportion to the amounts for which they are liable in accordance with
each respective contract. If foreign law is applicable to one of the
insurances, the insurer to whom foreign law applies may only assert a claim for
compensation against the other insurer if he himself is liable to pay
compensation under the relevant law.
(3) If the policyholder has taken out multiple
insurance with the intention of thereby gaining an illegal pecuniary benefit,
each contract made with that intention shall be void; the insurer shall be
entitled to the insurance premium up until such time as he learned of the
circumstances establishing the nullity.
(1) If the policyholder has made the contract on
account of which the multiple insurance arose without knowing that the multiple
insurance arose thereby, he may demand that the contract made at a later date
be rescinded or the sum insured be reduced, also reducing the insurance premium
proportionally to that share not covered by the earlier insurance.
(2) Subsection (1) shall also apply if the
multiple insurance arose on account of the fact that the insurable value
decreased after the conclusion of several contracts of insurance. If in such
cases several contracts of insurance were made at the same time or with the
consent of the insurers, the policyholder may only demand the proportional
reduction of the sums insured and of the premiums.
(1) The policyholder shall not be obligated to pay the
insurance premium if no insured interest exists when the insurance cover
commences; this shall also apply if the interest does not arise in the case of
an insurance taken out for a future enterprise or for another future interest.
However, the insurer may demand an appropriate fee.
(2) If the insured interest ceases to exist once the
insurance cover commences, the insurer shall be entitled to the premium to
which he would have been entitled if the insurance had only been applied for up
until the time when the insurer learned of the cessation of the interest.
(3) If the policyholder has insured a non-existent
interest with the intention of thereby gaining an illegal pecuniary benefit,
the contract shall be void; the insurer shall be entitled to the premium paid
up until the time when he learns of the circumstances establishing the nullity.
(1) The insurer shall not be obligated to effect
payment if the policyholder intentionally causes the insured event.
(2) If the policyholder causes the insured event by
gross negligence, the insurer shall be entitled to reduce the benefits payable
commensurate with the severity of the fault of the policyholder.
(1) The policyholder must, upon the occurrence of the
insured event, ensure that the loss is avoided or minimised wherever possible.
(2) The policyholder must follow the instructions of
the insurer, where reasonable, and obtain instructions, circumstances
permitting. If several insurers involved in the contract of insurance issue
different instructions, the policyholder must act at his own proper discretion.
(3) In the event of the breach of an incidental
obligation under subsections (1) and (2), the insurer shall not be
obligated to effect payment if the policyholder intentionally breached the
incidental obligation. In the event of a grossly negligent breach, the insurer
shall be entitled to reduce the benefits payable commensurate with the severity
of the policyholder's fault; the burden of proof that there was no gross
negligence is on the policyholder.
(4) Notwithstanding subsection (3), the insurer
shall be liable insofar as the breach of the incidental obligation is the cause
neither of the establishment of the occurrence of the insured event, nor of the
establishment of the extent of the liability. The first sentence shall not
apply if the policyholder has fraudulently breached the obligation.
(1) The insurer shall reimburse the policyholder's
expenses in accordance with section 82 (1) and (2), even if they remain
unsuccessful, to the extent that the policyholder could deem them necessary
based on the circumstances. Upon the request of the policyholder the insurer
shall advance the amount of the necessary expenses.
(2) If the insurer is entitled to reduce the benefits
payable, he may also reduce the amount of the expenses reimbursed in accordance
with subsection (1) accordingly.
(3) Expenses incurred by the policyholder on account
of his following the insurer's instructions shall also be reimbursed to the
extent that they exceed the sum insured, taken together with the other
compensation.
(4) In the case of livestock insurance, the costs of
feeding and keeping the livestock, as well as the costs of veterinary
examinations and treatment are not classed as expenses to be reimbursed by the
insurer in accordance with subsections (1) to (3).
(1) If the contract provides for experts to establish
the individual prerequisites for the claim arising under the insurance or the
amount of the loss, the establishment shall not be binding if it obviously
deviates considerably from the facts and circumstances. In such cases the
prerequisites shall be established by a judicial decision. This shall also
apply if the experts are unable or unwilling to carry out the establishment or
delay the establishment.
(2) If the contract provides for the experts to be
appointed by the court, that local court shall be responsible for appointing
the experts in whose district the loss occurred. The competence can be
transferred to another local court by explicit agreement between the
contracting parties. The order on account of which the application for the
appointment of experts is granted shall not be contestable.
(1) The insurer shall reimburse the policyholder those
costs arising in the establishment and determination of the loss to be compensated
to the extent that the expenses were necessary in view of the circumstances.
These costs shall also be reimbursed to the extent that they exceed the sum
insured, taken together with the other compensation.
(2) The insurer shall not reimburse costs incurred by
the policyholder on account of drawing on the services of an expert or counsel,
unless the policyholder is contractually obligated to do so or was requested to
do so by the insurer.
(3) If the insurer is entitled to reduce the benefits
payable, he may also reduce the costs reimbursed accordingly.
(1) If the policyholder is entitled to claim damages
from a third party, this claim shall be assigned to the insurer insofar as the
insurer compensates for the loss. The claim may not be assigned to the
detriment of the policyholder.
(2) The policyholder shall safeguard his claim for
damages or a right serving to safeguard this claim in accordance with the
applicable form and time requirements, and shall assist the insurer wherever
necessary in asserting them. If the policyholder intentionally breaches this obligation,
the insurer shall not be obligated to effect payment insofar as he cannot as a
result claim compensation for it from a third party. In the event of a grossly
negligent breach of the obligation, the insurer shall be entitled to reduce the
benefits payable commensurate with the severity of the policyholder's fault;
the burden of proof that there was no gross negligence is on the policyholder.
(3) If the policyholder claims compensation from a
person with whom he is sharing a common household when the loss occurs,
assignment in accordance with subsection (1) cannot be asserted, unless
that person intentionally caused the loss.
Agreements deviating from sections 74, 78 (3),
sections 80, 82 to 84 (1), first sentence, and section 86 to the
detriment of the policyholder shall not be permitted.
Unless otherwise agreed, the insurable value - where
the insurance refers to an item or an aggregate of items - shall be deemed to
be the amount which the policyholder must spend upon occurrence of the insured
event to replace or to restore the insured property to mint condition, minus
the reduced market value resulting from the difference between old and new.
(1) Insurance taken out for an aggregate of items
covers each individual item belonging to the aggregate of items.
(2) If the insurance is taken out for an aggregate of
items, it covers the items belonging to those persons with whom the
policyholder is sharing a common household upon occurrence of the insured event
or who are employed by the policyholder at that time and are working at a
location covered by the insurance. The insurance shall thus be deemed to have
been taken out for the account of a third party.
If the policyholder pays expenses in order to avoid an
immediately imminent insured event or to minimise its impacts, section 83
(1), first sentence, subsections (2) and (3) shall apply mutatis mutandis.
One month after notification is given of the insured
event, four per cent interest shall be added to the compensation to be paid by
the insurer, unless other higher interest rates can be demanded on other legal
grounds. The time limit shall be suspended for as long as the loss or damage
cannot be established as a result of the policyholder's fault.
(2) The termination shall only be permissible up until
the end of one month after the conclusion of negotiations in respect of the
compensation. The insurer shall keep a one month period of notice. The
policyholder may not terminate the contract for a later point in time than the
end of the current period of insurance.
(3) In the case of hail insurance, the insurer may
only terminate the contract to the end of the period of insurance in which the
insured event occurred. If the policyholder terminates the contract to an
earlier point in time than the end of that period of insurance, the insurer is
nevertheless entitled to the premium for the current period of insurance.
If the insurer is obligated under the contract only to
pay a share of the compensation in the case of replacement or repair of the
insured object, the policyholder may not demand payment of an amount in excess
of the insurable value until replacement or repair is guaranteed. The
policyholder shall be obligated to repay any compensation to the insurer, minus
the insurable value of the object, if the object was not replaced or repaired
within an appropriate period as a result of the policyholder's fault.
(1) In the case of section 93, first sentence, a
payment made without the guarantee of replacement or repair shall only be
effective vis-à-vis a mortgage creditor if the insurer or the policyholder has
informed him that the payment is to be made without the guarantee and no less
than one month has elapsed since receipt of the communication.
(2) If the amount of compensation is not to be
utilised to restore or replace the property in accordance with the terms of the
contract, the insurer shall be permitted not to pay with effect vis-à-vis a
mortgage creditor until he or the policyholder has notified the mortgagee of
that intention and no less than one month has elapsed since receipt of the
communication.
(3) The mortgage
creditor may object to payment vis-à-vis the insurer for a period of one month only.
The communications referred to under subsections (1) and (2) may be
omitted if they would necessitate an unreasonable amount of time and effort; in
such cases the time limit begins on the due date for payment of the amount of
compensation.
(4) If the mortgage
creditor has notified the insurer of his mortgage, a payment made without the
guarantee of restoration or replacement only becomes effective vis-à-vis the
mortgage creditor if the latter has agreed in writing to effect payment.
(5) Subsections (1)
to (4) shall apply mutatis mutandis if the property is burdened with a land
charge, annuity land charge or other charges on land.
(1) If the policyholder
sells the insured object, the policyholder shall assign to the buyer the rights
and obligations resulting throughout the period of his ownership.
(2) The seller and the
buyer shall be liable as joint and several debtors for the premium payable
during the current period of insurance at such time as the seller assigns the
rights to the buyer.
(1) The insurer shall be
entitled to terminate the insurance agreement vis-à-vis the buyer of an insured
object subject to a notice period of one month. The right to terminate the
contract shall lapse if it is not exercised within one month of the insurer
learning of the sale.
(2) The buyer shall be
entitled to terminate the insurance agreement with immediate effect or to the
end of the current period of insurance. The right to terminate the contract
shall lapse if it is not exercised within one month of the purchase, in the
case of a lack of the buyer's knowledge of the existence of an insurance within
one month after he learns thereof.
(3) In the event that
the insurance agreement is terminated in accordance with subsections (1)
or (2), the seller shall be obligated to pay the premium; the buyer shall not
be liable to pay the premium.
(1) The seller or the
buyer must disclose the sale to the insurer without undue delay. Where
disclosure has not been made, the insurer shall not be obligated to effect
payment if the insured event occurs later than one month after the time when
the insurer should have received the disclosure, and the insurer would not have
made the contract with the buyer which existed with the seller.
(2) Notwithstanding
subsection (1), second sentence, the insurer shall be obligated to effect
payment if he knew of the sale at such time as he should have received the
disclosure, or if at the time of the occurrence of the insured event the time
limit for the insurer to terminate the contract had expired and he did not
terminate the contract.
The insurer may not
refer to any provision of the contract of insurance which derogates from
sections 95 to 97 to the detriment of the buyer. However, the contract may
provide that the termination of the contract by the buyer in accordance with
section 96 (2) and the disclosure of the sale must be made in writing.
Where ownership of an
insured object is assigned on the basis of foreclosure or a third party
acquires the entitlement to insured produce of the soil on the basis of
usufruct, a lease contract or a similar agreement, sections 95 to 98 shall
apply mutatis mutandis.
In the case of liability
insurance, the insurer shall be obligated to release the policyholder from any
claims asserted by a third party on the basis of the policyholder's
responsibility for a fact arising during the period of insurance, and to avoid
unfounded claims.
(1) The insurance shall
also cover the judicial and extra-judicial costs arising from claims asserted
by a third party insofar as the circumstances necessitate the expenditure.
Further, the insurance covers expenses incurred on the instruction of the
insurer by defence counsel in criminal proceedings initiated on the basis of an
act which could result in the policyholder becoming liable vis-à-vis a third
party. At the policyholder's request the insurer shall advance the costs.
(2) If a sum insured has
been determined, the insurer shall also reimburse the costs of a legal dispute
conducted at his instigation and the costs for defence counsel in accordance
with subsection (1), second sentence, insofar as they exceed the sum
insured plus the insurer's expenses for indemnifying the policyholder. This
shall also apply to interest payments which the policyholder owes the third
party as a result of a delay in satisfying the third party occasioned by the
insurer.
(3) If the policyholder
is released from the obligation of avoiding the execution of a judicial
decision by furnishing security or a deposit, the insurer shall effect the
payment of the security or deposit. This obligation shall only apply up to the
amount of the sum insured; if the insurer is obligated in accordance with
subsection (2) over and above that amount, the surplus amount shall be
added to the sum insured. The insurer shall be released from the obligation
under the first sentence if he acknowledges that the third party's claim
vis-à-vis the policyholder is well-founded.
(1) If the insurance has
been taken out for a business enterprise, it shall cover liability insurance
for those persons authorised to represent the enterprise as well as those
persons employed by the enterprise. The insurance shall thus be deemed to be
taken out for the account of a third party.
(2) Should the business
enterprise be sold to a third party or taken over by a third party on account
of usufruct, a lease contract or a similar agreement, the policyholder shall
assign to the third party the rights and obligations resulting from the
insurance agreement throughout the period of his entitlement. Section 95
(2) and (3), as well as section 96 and section 97 shall apply mutatis
mutandis.
The insurer shall not be
obligated to effect payment if the policyholder has intentionally and
unlawfully caused the loss suffered by the third party.
(1) The policyholder
shall be obligated to disclose to the insurer within one week those facts which
could give rise to his responsibility vis-à-vis a third party. If the third
party asserts a claim against the policyholder, the policyholder shall be obligated
to disclose that fact to the insurer within one week after the claim is
asserted.
(2) Where a claim is
asserted against the policyholder in court, legal aid is applied for or a
third-party complaint is filed against him in court, he shall be obligated to
disclose that fact to the insurer without undue delay. This shall also apply
when investigative proceedings have been initiated against the policyholder on
account of the occurrence of the loss giving rise to the claim.
(3) Timely dispatch of
the notice of disclosure shall suffice for compliance with the time limits
under subsections (1) and (2). Section 30 (2) shall apply mutatis
mutandis.
Agreements in accordance
with which the insurer shall not be obligated to effect payment if the
policyholder satisfies the third party or acknowledges his entitlement without
the insurer's consent shall be void.
The insurer shall be
obligated to release the policyholder from the third party's claim within two
weeks, beginning at the time when the third party's claim is established with
binding effect for the insurer by final judgement, acknowledgement or
settlement. If the third party has been satisfied by the policyholder with
binding effect for the insurer, the insurer shall be obligated to pay the
compensation to the policyholder within two weeks after the third party has
been satisfied. The insurer shall be obligated to pay any costs to be
reimbursed in accordance with section 101 within two weeks after
communication of the calculation.
(1) Where the
policyholder is obligated to pay the third party a pension, the insurer shall
only be liable to pay a pro-rata share of the pension if the sum insured is not
equal to the capital value of the pension.
(2) If the policyholder
is obligated, by operation of law, to pay the third party a security for the
pension he is liable to pay, the insurer's obligation shall cover the payment
of the security. Subsection (1) shall apply mutatis mutandis.
(1) The policyholder's
right of recourse against the insurer shall be ineffective vis-à-vis the third
party. A legal act of disposal shall be equal to an act of disposal based on
execution or attachment execution.
(2) Assignment of the
right of recourse to the third party may not be ruled out by the general terms
and conditions of insurance.
If the policyholder
bears responsibility towards several third parties and their claims are in
excess of the sum insured, the insurer shall pay these claims in proportion to
their amounts. If the sum insured is thereby exhausted, a third party not taken
into consideration during the allocation may not subsequently invoke
section 108 (1) if the insurer had not expected and should not have
expected that these claims would be asserted.
In the event of
insolvency proceedings being opened in respect of the assets of the
policyholder, the third party may request separate satisfaction from the
policyholder's right of recourse on account of the claim due him against the
policyholder.
(1) If, after the
occurrence of the insured event, the insurer has acknowledged or wrongly
rejected the policyholder's recourse, each party may terminate the insurance
agreement. This shall also apply if the insurer instructs the policyholder to
allow a legal dispute in respect of the third party's claim.
(2) The contract may
only be terminated within one month after the acknowledgement or
rejection of the right of recourse or after the judgement in the legal
dispute with the third party became final. Section 92 (2), second
sentence, and subsection (3) shall apply.
Agreements deviating
from section 104 and section 106 to the detriment of the policyholder
shall not be permitted.
(1) Liability insurance
which a policyholder is obligated by legal provision to take out (compulsory
insurance) must be concluded with an insurance company authorised to do
business in Germany.
(2) The insurer shall
confirm in writing to the policyholder, quoting the sum insured, that he is
obligated to take out the compulsory insurance in accordance with a legal
provision, to which reference must be made.
(3) The provisions of
this Division shall also apply insofar as the contract of insurance grants
cover in excess of the prescribed minimum requirements.
(1) In the case of
compulsory insurance, the minimum sum insured shall be 250,000 euros per claim
and one million euros for all claims per insurance year, unless otherwise
provided by legal provision.
(2) The contract of
insurance may specify the content and scope of the compulsory insurance in more
detail insofar as this does not endanger the fulfilment of the respective
objective of the compulsory insurance and unless explicitly otherwise provided
by legal provision. Any excess on the part of the policyholder cannot be cited
against the third party, and cannot be asserted against a co-insured person.
1. in the case of liability insurance, for the fulfilment of a
duty to take out insurance in accordance with the Compulsory Insurance Act, or
2. where insolvency proceedings have been opened in respect of
the assets of the policyholder or an application for such opening has been
dismissed on account of a lack of insolvency estate or a provisional insolvency
administrator has been appointed, or
The entitlement to a
claim shall exist within the framework of the insurer's liability under the
insurance agreement and, insofar as no liability exists, within the framework
of section 117 (1) to (4). The insurer shall pay the compensation in
money. The insurer and the policyholder liable to pay compensation shall be
liable as joint and several debtors.
(2) The claim under
subsection (1) shall be subject to the same limitation period as the claim
for compensation against the policyholder liable to pay compensation. The
limitation shall commence at the time when the limitation period on the claim
for compensation against the policyholder liable to pay compensation commences;
however, it shall end at the latest after ten years, beginning when the loss is
incurred. Where notice of the third party's claim has been given to the
insurer, limitation shall be suspended up until the time when the claimant
receives the insurer's decision in writing. The suspension, the end of the
suspension and the re-commencement of the limitation on the claim against the
insurer shall also be effective against the policyholder liable to pay
compensation and vice versa.
(1) As regards the
relationship between the joint and several debtors under section 115 (1),
fourth sentence, the insurer shall be solely liable insofar as he is obligated
to indemnify the policyholder based on the insurance agreement. If no such
obligation exists the policyholder shall be solely liable in respect of the
relationship between them. The insurer may request compensation for expenses
which it was permissible for him to deem necessary given the circumstances.
(2) The limitation on
claims resulting from subsection (1) shall commence at the end of the year
in which the third party's claim is satisfied.
(1) If the insurer is
wholly or partially released from liability to the policyholder, his liability
to the third party shall nevertheless remain.
(2) A circumstance which
results in the non-existence or the termination of the insurance agreement
shall only be effective in consideration of the third party one month after the
insurer has notified the competent agency of this circumstance. This shall also
apply if the insurance agreement ends on account of time lapsed. The time limit
does not commence before the insurance agreement has ended. A circumstance as
described in the first and second sentences may also be cited against the third
party if before the point in time at which the loss arose the competent agency
had received confirmation of a new insurance taken out based on a relevant law.
The above provisions of this Division shall not apply if no competent agency
has been appointed to receive the notification in accordance with the first
sentence.
(3) In the cases
described in subsections (1) and (2), the insurer shall only be liable
within the framework of the prescribed minimum sum insured and the risk assumed
by him. He shall not be obligated to effect payment insofar as the third party
may receive compensation for his loss from another indemnity insurer or from a
social insurance agency.
(4) If the insurer's
obligation to effect payment in accordance with subsection (1) or (2)
coincides with a liability to pay compensation on the basis of negligent breach
of official duty, the liability to pay compensation in accordance with
section 839 (1) of the German Civil Code shall not be ruled out in the
relationship with the insurer on account of the fact that the preconditions for
the insurer's liability are met. The first sentence shall not apply if the
public official is personally liable in accordance with section 839 of the
German Civil Code.
(5) Insofar as the
insurer satisfies the third party in accordance with subsections (1) to
(4) and no case as described in section 116 exists, the third party's
claim against the policyholder shall be assigned to him. The assignment may not
be asserted to the detriment of the third party.
(6) Where insolvency
proceedings are opened against the assets of the insurer, the insurance
agreement shall not end, notwithstanding section 16, until one month after
the insolvency administrator has notified the competent agency of this
circumstance; up until such time it shall remain effective against the
insolvency estate. If no competent agency has been appointed to take receipt of
the notification in accordance with the first sentence, the insurance agreement
shall end one month after the policyholder has been notified of the opening of
insolvency proceedings; the notification must be made in writing.
(1) If the claims for
compensation to be paid on the basis of the same occurrence of loss are in excess
of the sum insured, the sum insured shall be paid out to those entitled to
compensation according to the following order of precedence, in the event of
equal precedence commensurate with their amounts:
1. claims arising from personal injury insofar as the injured
persons cannot receive compensation for their injuries from the injuring party,
from another insurer as their liability insurer, a social insurance agency or
another third party;
2. claims arising from other injuries to natural or legal persons
under private law insofar as the injured parties cannot receive compensation
from the injuring party, another insurer as their liability insurer or a third
party;
3. claims arising from personal injury or other injuries
assigned to insurers or other third parties under private law;
(2) If the sum insured
is exhausted taking account of subordinate claims, a rightful claimant who
should be afforded precedence and who has not been taken into consideration
during the allocation may not subsequently invoke subsection (1) if the
insurer did not expect and also need not have expected that this claim would be
asserted.
(1) The third party
shall notify the insurer in writing of the loss occurrence from which he wishes
to derive a claim against the policyholder or against the insurer in accordance
with section 115 (1) within two weeks after he has learned of the loss
occurrence; timely dispatch shall suffice for compliance with the time limit.
(2) If the third party
asserts the claim against the policyholder in court, he must notify the insurer
in writing of that fact without undue delay.
(3) The insurer may
demand information from the third party insofar as it is necessary for the
establishment of the loss occurrence and of the amount of the loss. The insurer
may also request that proof be furnished insofar as the third party can be reasonably
expected to obtain such proof.
Where the third party
culpably breaches the incidental obligation under section 119 (2) or (3),
the insurer's liability in accordance with section 115 and
section 117 shall be limited to that amount which he would also have had
to pay had the obligation been duly fulfilled, insofar as the third party had
previously been informed explicitly and in writing of the consequences of
non-observance.
(1) If, in the case of
an insurance taken out for the account of a third party, the insurer is not
liable to the policyholder, he may only cite this against an insured party
authorised to independently assert his rights arising from the contract of
insurance if the circumstances on which the exemption from obligation to effect
payment are based on the insured person himself or if these circumstances were
known to the insurer or not known to the insurer on account of gross
negligence.
(2) The extent of the
obligation to effect payment under subsection (1) shall be determined in
accordance with section 117 (3), first sentence; section 117 (3),
second sentence, shall not apply. Section 117 (4) shall apply mutatis
mutandis.
(3) Insofar as the
insurer pays the claim in accordance with subsection (1), he may have
recourse to the policyholder.
(4) Subsections (1)
to (3) shall apply mutatis mutandis if the time limit under section 117
(2), first and second sentences, has not yet expired or the insurer has not
notified the competent agency that the insurance agreement has ended.
(1) Where it has been
established by final judgement that the third party has no right to claim
compensation, the judgement, if issued between the third party and the insurer,
shall also be effective to the advantage of the policyholder, if it is issued between
the third party and the policyholder, it shall also be effective to the
advantage of the insurer.
(2) If the third party's
claim against the insurer has been established by final judgement,
acknowledgement or settlement, the policyholder against whom claims have been
asserted by the insurer on the basis of section 116 (1), second sentence,
must accept this establishment unless the insurer has culpably violated the
obligation to avoid unfounded claims for compensation and to minimise or duly
establish the loss.
(3) Subsections (1)
and (2) shall not apply insofar as the third party may not assert his claim for
damages against the insurer in accordance with section 115 (1).
In the case of legal
expenses insurance, the insurer shall be liable to the extent necessary to look
after the legal interests of the policyholder or of the insured person as per
the agreement.
(1) Where risks in the
sphere of legal expenses insurance are insured along with other risks, the
insurance policy must separately quote the scope of the legal expenses
insurance cover and the premium payable therefor. If the insurer hires an
independent claims processing company to handle these claims, the name of this
company must be quoted on the insurance policy.
(2) If an independent
claims processing company is hired to deal with these claims, claims arising
under a legal expenses insurance contract may only be asserted against that
company. The title shall be effective for and against the legal expenses
insurer. Section 727 of the Code of Civil Procedure shall be applied
mutatis mutandis.
(1) The policyholder
shall be entitled freely to choose a lawyer to represent his interests in court
and administrative proceedings from among the circle of lawyers whose fees the
insurer will cover in accordance with the contract of insurance. This provision
shall also apply if the policyholder is entitled to claim legal expenses for
the representation of other legal interests.
(2) A lawyer shall also
be anyone authorised to exercise the profession in accordance with the
designations set out in the Annex to section 1 of the Act Regulating the
Activity of European lawyers in Germany of 9 March 2000 (Federal Law Gazette I,
p. 182, p. 1349), as last amended by Article 1 of the Act of 26 October 2003
(Federal Law Gazette I, p. 2074), as amended.
In the event that the
insurer denies his liability because looking after the legal interests does not
have sufficient prospects of success or is wanton, the contract of insurance
must provide for a procedure to call in expert opinion or another procedure with
comparable guarantees of impartiality in which a decision can be taken
regarding the differences of opinion between the parties concerning the
prospects of success or the wantonness of prosecution. The insurer shall draw
the policyholder's attention to this fact when denying his obligation to effect
payment. If the contract of insurance does not provide for any such procedure
or the insurer fails to provide this information, the policyholder's need for
legal protection shall be deemed to have been acknowledged in individual
cases.
Agreements deviating
from sections 126 to 128 to the detriment of the policyholder shall not be
permitted.
(1) In the case of the
insurance of goods against the risks of transportation by land or inland
waterways as well as the concomitant storage, the insurer shall bear all the
risks to which the goods are exposed throughout the period of cover.
(2) If a ship is insured
against the risks of inland waterway transportation, the insurer shall bear all
the risks to which the ship is exposed throughout the period of cover. The
insurer shall also be liable for that loss incurred by the policyholder as a
result of a collision between ships or a collision with fixed or floating
objects on account of having to replace loss incurred by a third party.
(3) The insurance
against the risks of inland waterway transportation covers contributions to
gross average insofar as the average measure serves the avoidance of loss to be
compensated by the insurer.
(1) Notwithstanding
section 19 (2), in the event of a breach of the duty of disclosure, the
insurer's rescission shall be ruled out; the insurer may terminate the contract
and refuse performance within one month from the time when he learns that the
circumstance was not disclosed or not disclosed correctly. The insurer shall
remain liable insofar as the circumstance which was not disclosed or not
disclosed correctly was not the cause of the occurrence of the insured event or
of the extent of the liability.
(2) If the insurer
refuses performance, the policyholder may terminate the contract. The right to
terminate the contract shall lapse if it is not exercised within one month
after the time when the policyholder receives the insurer's decision to refuse
performance.
(1) Notwithstanding
section 23, the policyholder may aggravate the risk insured or change it
in another manner and permit changes by a third party. He must disclose the
change to the insurer without undue delay.
(2) If the policyholder
has not provided notification of an aggravation of the risk insured, the
insurer shall not be obligated to effect payment if the insured event occurs
after such time as the insurer should have received the notification. He shall
be obligated to effect payment
1. if he was aware of the aggravation of the risk insured at the
time when he should have received the notification,
2. if the duty of disclosure was breached neither intentionally
nor by acting with gross negligence, or
3. insofar as the aggravation of the risk insured was not the
cause of the occurrence of the insured event or of the extent of the liability.
(3) Notwithstanding
section 24, the insurer shall not be entitled to terminate the contract on
account of an aggravation of the risk insured.
(1) If the goods are
transported by a means of transport other than that agreed or are reloaded
although direct transportation was agreed, the insurer shall not be obligated
to effect payment. This provision shall also apply if only a specific means of
transport or a specific transport route was agreed.
(2) The insurer shall be
obligated to effect payment if, after the commencement of the insurance, the
transportation was changed or relinquished without the consent of the
policyholder or as the result of an insured event. Section 132 shall
apply.
(3) In those cases
described under subsection (2), the insurance shall cover the costs of the
reloading or the temporary storage as well as the additional costs of the
reforwarding.
(1) If no specific means
of transport has been agreed for the forwarding of the goods, the policyholder,
insofar as he has any influence thereupon, shall be obligated to use a means of
transport which is suited to taking on board and transporting the goods.
(2) If the policyholder
breaches this incidental obligation intentionally or by acting with gross
negligence, the insurer shall not be liable, unless the breach was not the
cause of the occurrence of the insured event or the extent of the liability.
(3) If the policyholder
learns of the unsuitability of the means of transport, he must notify the
insurer of that fact without undue delay. Section 132 shall apply.
(1) Expenses incurred by
the policyholder in loss avoidance or minimisation, as well as the costs of the
ascertainment and establishment of the loss, shall also be reimbursed by the
insurer insofar as they do not exceed the sum insured when added to the
remaining compensation.
(2) If expenses have
been incurred in loss avoidance or minimisation or in the ascertainment and
establishment of the loss or to restore or improve the property damaged by the
insured event or contributions have been made to gross average, or if the
policyholder has become personally liable to pay such contributions, the insurer
shall reimburse the loss caused by the subsequent occurrence of the insured
event without consideration for the earlier expenses and amounts to be
reimbursed by him.
(1) The insurable value
of the goods shall be deemed to be the common market value and, for lack of
that value, the common value of the goods at the place of shipping at the
commencement of the insurance, plus insurance costs, costs arising up until the
time when the transporter takes receipt of the goods and the final amount of
freightage paid.
(2) The value determined
in accordance with subsection (1) shall also be deemed to be the insurable
value upon occurrence of the insured event.
(3) Where goods are
damaged upon arrival at their place of delivery, their value at that place in
their damaged state shall be deducted from the value which they would have at
that place in an undamaged state. The fraction of the insurable value
corresponding to the ratio between the reduction in value and their value in
their undamaged state shall be deemed to be the amount of damage.
(1) The insurer shall
not be obligated to effect payment if the policyholder causes the insured event
intentionally or by acting with gross negligence.
(2) The policyholder
shall not be responsible for the conduct of the ship's crew when navigating the
ship.
In the case of insurance
of a ship, the insurer shall not be obligated to pay compensation for loss
arising on account of the fact that the ship was not in a fit state to sail or
not sufficiently equipped or not sufficiently manned when it set sail. This
provision shall also apply to loss only arising as a result of the wear and
tear onboard a ship in normal use.
(1) In the case of the
sale of an insured object for which an individual policy or a certificate of
insurance has been issued, the buyer shall, notwithstanding section 95,
not be liable to pay the premium. The insurer may not refer to his not being
obligated to effect payment against the buyer on account of non-payment of the
insurance premium or on account of the non-payment of a security, unless the
buyer knew the grounds for the non-obligation to effect payment or should have
known thereof.
(2) Notwithstanding
section 96, the insurer shall not be entitled to terminate the contract on
account of the sale of the insured goods.
(3) Notwithstanding
section 97, the policyholder shall not be obligated to notify the insurer
of the sale.
In the case of the sale
of an insured ship, the insurance shall end, notwithstanding section 95,
when the ship is transferred to the buyer, in the case of ships en route when
the ship is transferred to the buyer at the port of destination.
(1) After the occurrence
of the insured event, the insurer shall be entitled to release himself from all
further liabilities by paying the sum insured. The insurer shall remain liable
to reimburse those expenses which arose in loss avoidance or minimisation or to
replace or repair the insured object before the policyholder received his
declaration of intent to release himself by paying the sum insured.
(2) The right of the
insurer to release himself by paying the sum insured shall lapse if the
policyholder does not receive the declaration within one week after the time
when the insurer learned of the occurrence of the insured event and of its
immediate consequences.
(1) In the case of
building fire insurance, the insurer must disclose, in writing and without
undue delay, to a mortgage creditor who has declared his mortgage in the event
that the single or first premium is not paid in good time or the policyholder
is given a deadline by when he must pay a subsequent premium. This shall also
apply if the insurance agreement is terminated once the deadline expires on
account of the non-payment of the subsequent premium.
(2) The insurer shall
inform a mortgage creditor who has declared his mortgage in writing of the
occurrence of the insured event within one week after he has learned thereof,
unless the loss or damage is immaterial.
(1) In the event of a
subsequent premium not being paid in good time, the insurer shall remain
obligated to effect payment to a mortgage creditor who has declared his
mortgage up until one month after the time when the mortgage creditor was
informed of the setting of the deadline for payment or, if this information was
not communicated, notification has been given of the termination of the
contract.
(2) The termination of
the insurance agreement shall not become effective against a mortgage creditor
who has declared his mortgage until two months after the time when the insurer
informed him of the termination and, insofar as this had not occurred, such
time as the contract was terminated or he learned thereof in another manner.
The first sentence shall not apply if the insurance agreement is terminated on
account of the non-payment of the insurance premium by means of the insurer's
rescission or termination of the contract or the policyholder's termination of
the contract to which the mortgage creditor agreed.
(3) Subsection (2),
first sentence, shall apply mutatis mutandis to the effectiveness of an
agreement between the insurer and the policyholder on account of which the
scope of the insurance cover is reduced or in accordance with which the insurer
is only obligated to effect payment in respect of compensation to restore the
insured building.
(4) The nullity of the
contract of insurance cannot be asserted against a mortgage creditor who has
declared his mortgage. However, the insurance agreement against him shall
expire two months after the time when he has been informed of the nullity by
the insurer or he has learned of the nullity by another means.
Where a mortgage
creditor has declared his mortgage, a termination of the insurance agreement by
the policyholder shall, notwithstanding section 92 (1) and section 96
(2), only be effective if the policyholder has provided proof no less than one
month before the end of the contract of insurance that at the time when the
termination was permissible at the latest there was no mortgage on the property
or that the mortgage creditor had agreed to the contract being terminated. The
agreement may not be refused without sufficient grounds.
Insofar as the insurer
satisfies the mortgage creditor in accordance with section 143, the
mortgage shall be assigned to him. The assignment may not be asserted to the
detriment of an equal or subordinate mortgage creditor towards whom the insurer
remained liable.
The insurer shall be
obligated to provide confirmation of declaration to a mortgage creditor who has
declared his mortgage and, upon request, to disclose information regarding the
existence of insurance cover and regarding the amount of the sum insured.
If the mortgage creditor
has not disclosed a change in his address or name to the insurer,
section 13 (1) shall apply mutatis mutandis to the insurer's notifications
and communications in accordance with section 142 and section 143.
If land charges, annuity
rent charges and other charges on land have been taken out on the real
property, sections 142 to 147 shall apply mutatis mutandis.
The rights under
sections 142 to 148 may not be asserted to the advantage of mortgages,
land charges or annuity rent charges to which the policyholder is entitled.
(2) Where the life
insurance is taken out against the death of another person and the agreed
benefit exceeds normal funeral costs, the written agreement of the other person
shall be necessary for the contract to be effective; this shall not apply in
the case of collective life insurances in company pension schemes. If the other
person has no legal capacity to act or only limited capacity to act, or if a
custodian has been appointed and the policyholder is entitled to represent that
person's interests, he may not represent the other person when giving his
consent thereto.
(3) If one parent takes
out the insurance for an under-age child, the child's consent shall only be
required if in accordance with the contract the insurer is to be liable even in
the event of the child dying before reaching the age of seven and the benefit
agreed for this event exceeds normal funeral costs.
(4) Insofar as the
supervisory body has determined a specific maximum amount for normal funeral
costs, this amount shall prevail.
Agreeing that the
insured person shall undergo a medical examination shall not establish the
insurer's right to conduct that examination.
(2) Notwithstanding
section 9, first sentence, the insurer shall also pay the surrender value,
plus surplus sharing, in accordance with section 169. In the case of
section 9, second sentence, the insurer shall reimburse the surrender
value, plus surplus sharing, or, if this is more favourable for the
policyholder, the insurance premiums paid for the first year.
(3) Notwithstanding
section 33 (1), the single or first premium shall be payable without undue
delay 30 days after receipt of the insurance policy.
(1) The policyholder shall
be entitled to a share of the profit and valuation reserves (surplus sharing),
unless surplus sharing is ruled out by explicit agreement; surplus sharing may
only be wholly ruled out.
(2) The insurer shall
apply a causation-based procedure to the surplus sharing; other comparable,
suitable principles of distribution may be agreed. The amounts within the
meaning of section 268 (8) of the Commercial Code shall not be taken into
account.
(3) The insurer shall
determine the valuation reserves annually and assign them by calculation
according to a causation-oriented procedure. When the contract expires the
amount to be determined for that point in time shall be halved and half paid to
the policyholder; earlier payment may be agreed. Supervisory regulations regarding
capital resources shall remain unaffected.
(4) In the case of
pension insurances, the end of the savings accumulation period shall be the
relevant time point in accordance with subsection (3), second sentence.
(1) If the insurer
quotes in figures the amount of the possible benefits over and above the
contractually guaranteed payments in connection with the offer or the
conclusion of a life insurance, he shall be obligated to provide the
policyholder with a model calculation which states the possible maturity
benefit based on the actuarial principles for premium calculation with three
different rates of interest. This provision shall not apply to risk insurances
and contracts which provide for benefits of the type described in
section 54b (1) and (2) of the Insurance Supervision Act.
(2) The insurer shall
clearly and comprehensibly indicate to the policyholder that the model
calculation only represents a model based on fictitious assumptions and that
the policyholder cannot derive any contractual claims against the insurer from
the model calculation.
In the case of
insurances with surplus sharing, the insurer shall inform the policyholder
annually in writing of the development of his claims, including surplus
sharing. Further, the insurer, if he has provided figures regarding the
possible future progression of the surplus sharing, must indicate to the
policyholder how the actual development deviates from the figures quoted
initially.
Insofar as the knowledge
and conduct of the policyholder is of any legal significance under this Act, in
the case of insurance taken out for another person, account shall also be taken
of that other person's knowledge and conduct.
Where the insured
person's age has been declared incorrectly, the insurer's liability shall
change in the proportion that the insurance premium commensurate with his
actual age bears to the agreed insurance premium. The insurer shall,
notwithstanding section 19 (2), only have the right to withdraw from the
contract on account of the breach of the duty of disclosure if he would not
have concluded the contract had the age been declared correctly.
(1) An aggravation of
the risk insured shall only be deemed to be such change in the risk factors
deemed to constitute an aggravation of the risk insured by explicit agreement;
the agreement must be made in writing.
(2) An insurer may no
longer assert an aggravation of the risk insured once five years have elapsed
since the increase. If the policyholder has intentionally or fraudulently
breached his obligation under section 23, this time limit shall be ten
years.
(3) Section 41
shall apply with the proviso that a reduction of the premium may only be
demanded on account of such a reduction of risk factors deemed to be so by
explicit agreement.
(1) In cases of doubt,
the policyholder shall be entitled, without the consent of the insurer, to
appoint a third party as beneficiary and to replace the thus appointed third
party with the name of another.
(2) A third party
beneficiary by revocable designation shall not acquire the right to payment of
the insurer's benefit until the insured event occurs.
(3) A third party
beneficiary by irrevocable designation shall acquire the right to payment of
the insurer's benefit at the time when he is designated as beneficiary.
(1) If several persons
are appointed as beneficiaries without determining their shares, they shall be
entitled to benefit in equal share. The share not acquired by any one
beneficiary shall accrue to the remaining beneficiaries.
(2) If the insurer's
benefit is to be paid to the policyholder's heirs upon his death, in cases of
doubt those appointed as heirs upon his death shall be entitled to benefit in
relation to their shares in the inheritance. A waiving of the right to the inheritance
shall have no influence on the entitlement.
(3) Where the right to
the insurer's benefit is not acquired by the third party beneficiary, it shall
be due to the policyholder.
(4) Where the tax
authorities are appointed as heir, they shall not be entitled to benefit within
the meaning of subsection (2), first sentence.
(1) In the case of a
whole life insurance, the insurer shall not be obligated to effect payment if
the insured person intentionally commits suicide before three years have
elapsed since the conclusion of the contract of insurance. This shall not apply
if the act was committed while a person was in a state of morbid disturbance of
mind precluding their ability to freely determine their intent.
(3) Where the insurer is
not obligated to effect payment, he must pay the surrender value plus surplus
sharing in accordance with section 169.
(1) If the insurance has
been taken out against the death of a person other than the policyholder, the
insurer shall not be obligated to effect payment if the policyholder
intentionally causes the death of the other by an unlawful act.
(2) If a third party has
been appointed beneficiary, the appointment shall be deemed not to have
occurred if the third party intentionally causes the death of the insured
person by an unlawful act.
1. the need for benefits has changed not only temporarily and
unforeseeably in respect of the bases for calculating the agreed premium,
2. the re-determined premium is appropriate and necessary in
accordance with the amended bases of calculation in order to guarantee the
continuous satisfiability of the insurance benefit, and
3. an independent trustee has examined and confirmed the bases
of calculation and the conditions under nos. 1 and 2.
Any re-determination of
the premium shall be ruled out insofar as the insurance benefits payable at the
time of the first and renewed determination were insufficiently calculated and
a prudent and conscientious actuary should have recognised that fact in
particular based on the statistical bases of calculation available at that
point in time.
(2) The policyholder may
request that instead of an increase in the premium in accordance with
subsection (1), the insurance benefit be reduced accordingly. In the case
of an insurance free of premium (fully paid-up insurance), the insurer shall be
entitled to reduce the insurance benefit under the conditions set out in
subsection (1).
(3) The re-determination
of the insurance premium and the reduction of the insurance benefit shall
become effective at the start of the second month after the policyholder has
been informed about the re-determination or the reduction and the relevant
reasons.
(4) The trustee shall
not become involved in accordance with subsection (1), first sentence, no.
3 if the re-determination or the reduction of the insurance benefit requires
the authorisation of the supervisory body.
(1) If a provision of
the insurer's general terms and conditions of insurance has been declared void
by a decision of one of the highest courts or by a final administrative act,
the insurer may replace it with a new rule if this is necessary to continue the
contract or if continuing the contract without the new rule would represent
undue hardship for either party, even taking into account the interests of the
other party. The new rule shall only be effective if it takes appropriate
account of the concerns of the policyholder and is in keeping with the
objective of the contract.
(2) The new rule in
accordance with subsection (1) shall become an integral part of the
contract two weeks after the policyholder has been informed of the new rule and
of the relevant grounds.
(1) The policyholder
may, at any time from the end of the current period of insurance, demand that
the insurance be converted into a fully paid-up insurance, insofar as the
agreed minimum insurance cover is achieved. If that is not the case, the
insurer must pay the applicable surrender value plus surplus sharing in
accordance with section 169.
(2) Fully paid-up
insurance benefits shall be calculated in accordance with the accepted
actuarial rules using the bases for calculating the insurance premium based on
the surrender value in accordance with section 169 (3) to (5) and shall be
quoted in the contract for each insurance year.
(3) Fully paid-up
insurance benefits shall be calculated for the end of the current period of
insurance, taking into account any premium payments in arrears. The
policyholder's claims arising from surplus sharing shall remain unaffected.
(1) If the insurer
terminates the contract of insurance, the insurance shall be converted into a
fully paid-up insurance upon termination. Section 165 shall apply to the
conversion.
(2) In the case of
section 38 (2), the insurer shall be liable to that extent to which he
would have been liable if the insurance had been converted into a fully paid-up
insurance upon occurrence of the insured event.
(3) When setting a
deadline for payment in accordance with section 38 (1), the insurer must
indicate that the insurance is being converted.
(4) In the case of a
life insurance concluded by the employer for the benefit of this employees, the
insurer shall inform the insured person in writing of the setting of the
payment deadline in accordance with section 38 (1) and of the fact that
the insurance is being converted, and he shall grant to them a payment period
of no less than two months.
The life insurance
policyholder may at any time demand that the insurance be converted, to the end
of the current period of insurance, into an insurance which meets the
requirements of section 851c (1) of the Code of Civil Procedure. The costs
of the conversion shall be borne by the policyholder.
(1) Where continuous
insurance premiums are payable, the policyholder may terminate the insurance
policy at any time to the end of the current period of insurance.
(2) If an insurance
covers a risk for which the insurer is certain to be liable, the policyholder's
right to terminate the contract shall also apply if the premium consists of a
single payment.
(3) Subsections (1)
and (2) shall not apply to a contract of insurance which is to serve as
retirement provisions in which the policyholder has reached an irrevocable
agreement with the insurer that the policy cannot be cashed in before he
reaches the age of retirement; the value of the claims which may not be cashed
in at such time may not exceed the amounts set out in section 12 (2) no. 3
of Social Code Book II. The same applies mutatis mutandis insofar as the claims
in accordance with section 851c or 851d of the Code of Civil Procedure may
not be attached.
(1) If an insurance
offers insurance cover for a risk for which the insurer is certain to be liable
and the insurance agreement is rescinded because the policyholder terminates
the contract or because the insurer rescinds or avoids the policy, the insurer
shall pay the surrender value.
(2) The surrender value
shall only be paid insofar as this value does not exceed the payment made upon
occurrence of the insured event when the contract is terminated. The share of
the surrender value not paid after that time shall be used for the fully
paid-up insurance. In the case of rescission or avoidance of the contract the
full surrender value shall be paid.
(3) The surrender value
is the insurance's premium reserve calculated with effect to the end of the
current insurance period according to the accepted actuarial rules using the
bases of premium calculation, in the case of the termination of the insurance
agreement the amount of the premium reserve resulting from a symmetrical
allocation of the calculated acquisition and distribution costs for the first
five insurance years; the regulations stipulated by the supervisory authorities
in respect of maximum zillmerising rates shall remain unaffected. The
policyholder is to be informed of the surrender value and the extent to which
it is guaranteed before he submits his contractual acceptance; the statutory
ordinance referred to in section 7 (2) specifies further particulars. If
the insurer's headquarters are located in another Member State of the European
Union or in another state party to the Agreement on the European Economic Area,
he may base his calculation of the surrender value on another reference value
comparable in that state rather than on the premium reserve.
(4) In the case of
fund-based insurances and other insurances which provide for benefits of the
type described in section 54b of the Insurance Supervision Act, the
surrender value shall be calculated based on the accepted actuarial rules as an
end value of the insurance, insofar as the insurer does not guarantee payment
of a certain benefit; subsection (3) shall apply in other respects. The
principles on which the calculation is based shall be cited in the contract.
(5) The insurer shall
only be entitled to deduct the amount calculated in accordance with
subsection (3) or (4) if it has been agreed, put in figures and is
appropriate. An agreement regarding a deduction for as yet unsettled
acquisition and distribution costs shall be void.
(6) The insurer may
reduce the amount calculated in accordance with subsection (3) by an
appropriate amount insofar as this is necessary to rule out a risk to the
policyholder's concerns, especially a risk to the continuous satisfiability of
the obligations arising from the contracts of insurance. The reduction shall be
limited to one year in each instance.
(7) In addition to the
amount calculated on the basis of subsections (3) to (6), the insurer
shall pay the policyholder the surplus sharing already assigned to him, insofar
as this has not already been added to the amount calculated in accordance with
subsections (3) to (6), as well as the final surplus sharing provided for
in accordance with the relevant general terms and conditions of insurance in
the event of the termination of the contract; section 153 (3), second
sentence, shall remain unaffected.
(1) If attachment is
executed on the insurance claim or compulsory execution has been carried out or
insolvency proceedings are opened against the assets of the policyholder, the
designated beneficiary may, with the consent of the policyholder, subrogate to
the contract of insurance. Where the beneficiary subrogates, he must satisfy
the demands of the creditor initiating the proceedings or of the insolvency
estate up to the amount of the payment which the policyholder could demand from
the insurer in the event of the termination of the contract of insurance.
(2) Where no beneficiary
is designated or named, the policyholder's spouse or life partner or children
shall be entitled to the same right.
(3) The subrogation is
effected by giving notice thereof to the insurer. The notification may only be
made within one month after the time when the person entitled to subrogate
learns of the attachment or after the insolvency proceedings have been opened.
Agreements deviating
from section 152 (1), (2) and sections 153 to 155, sections 157,
158, 161 and sections 163 to 170 to the detriment of the policyholder, the
insured person or the person entitled to subrogation shall not be permitted.
Agreement may be reached to the effect that the policyholder's request for
conversion in accordance with section 165 and his termination of the
contract in accordance with section 168 must be made in writing.
(1) In the case of
occupational disability insurance, the insurer shall be liable to pay the
agreed benefits for any occupational disability arising after the commencement
of the insurance.
(2) 'Occupational
disability' shall refer to anyone who, in consequence of sickness, physical
injury or loss of strength over and above what is normal for their age, can
probably no longer wholly or partially exercise their most recently exercised
profession in the long run to the same extent as when they had no health
impairments.
(3) The insurer may
agree as a further precondition for his liability that the insured person does
not or cannot exercise another profession which he is in a position to take on
based on his training and skills and which corresponds to his previous position
in life.
(1) After a claim has
been filed, the insurer shall declare in writing when due whether he
acknowledges his obligation to effect payment.
(2) The acknowledgement
may only be time-barred once. It shall be binding up to the end of the time
limit.
(1) Where the insurer
establishes that the preconditions for his liability are no longer met, he
shall only be released from his liability if he has indicated this change to
the policyholder in writing.
(2) The insurer shall
only be released from liability three months after receipt of the declaration
under subsection (1) at the earliest.
Agreements deviating
from section 173 and section 174 to the detriment of the policyholder
shall not be permitted.
Sections 150 to 170
shall apply mutatis mutandis to occupational disability insurance insofar as
this does not conflict with the specific nature of this insurance.
(1) Sections 173 to
176 shall apply mutatis mutandis to all contracts of insurance in which the
insurer promises to pay claims arising on account of a permanent impairment of
the policyholder's capacity to work.
(2) Subsection (1)
shall not apply to accident insurance nor to health insurance contracts whose
subject matter is the risk of an impairment of the policyholder's capacity to
work.
(1) In the case of
accident insurance, the insurer shall be liable following an accident involving
the insured person or an event contractually deemed equivalent to an accident.
(2) An accident shall be
deemed to have occurred where the insured person involuntarily suffers a health
impairment on account of a sudden event having an external impact on his body.
Involuntariness shall be assumed until such time as the opposite is proven.
(1) The accident
insurance may be taken out against the occurrence of an accident involving the
policyholder or another person. An insurance against accidents involving
another person shall, in cases of doubt, be deemed to have been taken out for
the account of a third person.
(2) If the insurance
against accidents involving another person is taken out by the policyholder for
his own account, the written agreement of the other person shall be required
for the contract to become effective. If the other person has no legal capacity
to act or only limited legal capacity to act, or a custodian has been appointed
to him and the policyholder is entitled to represent the person's interests, he
may not represent the other person when giving his consent thereto.
(3) Insofar as in the
case under subsection (2) the knowledge and conduct of the policyholder is
of legal significance under this Act, account shall also be taken of the
knowledge and conduct of the other person.
The insurer shall owe
the promised payments to the agreed extent in the case of invalidity if the
insured person's physical or mental capacity is permanently impaired on account
of the accident. Such an impairment shall be deemed permanent if it is expected
to last for more than three years and no change in the situation is to be
expected.
(1) An aggravation of
the risk insured shall only be deemed to be such change in the circumstances
which is to be classed as an aggravation of the risk insured by explicit
agreement; the agreement must be made in writing.
(2) If, in the event of
an aggravation of risk insured, lower insurance benefits are payable in
accordance with the insurer's applicable tariff if the premium does not change,
these shall be deemed to have been agreed one month after the aggravation of
the risk insured begins. The insurer may only assert more comprehensive rights
if the policyholder fraudulently did not disclose the aggravation of the risk
insured.
Where it has been agreed
that the right to the agreed payment lapses or is reduced if illness or
ailments have contributed to the health impairments or their consequences
following an insured event, the insurer shall provide proof that the conditions
for the lapse or reduction of the claim exist.
(1) The insurer shall
not be liable if in the case of section 179 (2) the policyholder
intentionally caused the insured event through an unlawful act.
(2) If a third party has
been designated as a beneficiary, the appointment shall be deemed not to have
occurred if the third party intentionally caused the insured event through an
unlawful act.
Where it has been agreed
that the insurer is to pay out a capital sum, section 159 and
section 160 shall apply mutatis mutandis.
If the policyholder
gives notice of the occurrence of an insured event, the insurer shall provide
him with information in writing regarding the contractual preconditions for a
claim and due dates, as well as deadlines which must be adhered to. Should this
information not be provided, the insurer may not refer to any failure to meet a
deadline.
(1) After an application
for a claim has been filed, the insurer shall declare in writing within one
month after submission of the documents necessary for its assessment whether
and to what extent he acknowledges his liability. If the application is for payment
of an invalidity benefit, the time limit shall be three months.
(2) If the insurer
acknowledges the claim or the policyholder and insurer have agreed the reason
for and the amount of the claim, the payment shall be due within two weeks. If
the liability has been established on the merits only, the insurer shall pay an
appropriate advance upon the policyholder's request.
(1) Where the payment of
benefits has been agreed in the event of invalidity, each contracting party
shall be entitled to have the degree of invalidity re-assessed annually, no
more than three years after the accident occurred at the latest. In the case of
child accident insurance, the time limit within which a re-assessment may be
requested may be extended.
(2) Once the insurer
declares that he is liable, the policyholder must be instructed about his right
to have the degree of invalidity re-assessed. If such instruction is not given,
the insurer may not refer to any delay in the policyholder's request to have
the degree of invalidity re-assessed.
If the taking out of
accident insurance is compulsory under a legal provision, the insurer shall
certify to the policyholder, quoting the sum insured, that an accident
insurance exists in accordance with the legal provision, to which reference
must be made.
Agreements deviating
from section 178 (2), second sentence, and section 181, as well as
sections 186 to 188 to the detriment of the policyholder or the insured
person shall not be permitted.
(1) In the case of cost-of-illness
insurance, the insurer shall be obligated to reimburse any expenses for
medically necessary treatment due to sickness or in consequence of an accident
and for other agreed services to the agreed extent, including those expenses
associated with pregnancy and childbirth, as well as outpatient medical
check-ups for the early diagnosis of diseases in accordance with statutory
programmes.
(2) The insurer shall
not be liable to pay claims in accordance with subsection (1) insofar as
the expenses for treatment or other services are obviously disproportionate to
the services performed.
(3) The contracting
parties may agree that the content of the cost-of-illness contract of insurance
covers additional services directly linked to those referred to in
subsection (1), especially
1. the providing of advice regarding the services referred to in
subsection (1), as well as regarding the providers of such services;
2. the providing of advice regarding the entitlement to
remuneration of those providing the services referred to in
subsection (1);
3. the avoidance of unauthorised entitlements to remuneration of
those providing the services referred to in subsection (1);
4. the providing of support to insured persons when asserting
claims on account of the incorrect provision of the services referred to in
subsection (1) and the consequences resulting therefrom;
5. the direct settling of accounts for services referred to in
subsection (1) with the providers thereof.
(4) In the case of daily
hospital allowance insurance, the insurer shall be obligated to pay the agreed
daily hospital allowance for medically necessary inpatient treatment.
(5) In the case of daily
sickness allowance insurance, the insurer shall be obligated to reimburse the
loss of earnings resulting from the illness or accident due to the incapacity
to work by paying the agreed daily sickness allowance.
(6) In the case of
long-term nursing care insurance, the insurer shall be obligated, in the event
of the need for long-term nursing care, to reimburse to the agreed extent the
expenses for caring for the insured person (long-term nursing care costs
insurance) or to pay the agreed daily allowance (daily long-term nursing
allowance insurance). Subsection (2) shall apply mutatis mutandis to
long-term nursing care costs insurance. The provisions of Social Code Book XI
concerning private long-term nursing care insurance shall remain unaffected.
(7) In the case of
cost-of-illness insurance in the basic tariff in accordance with
section 12 of the Insurance Supervision Act, the service-provider may also
assert his claim to remuneration for services provided against the insurer
insofar as the insurer is obligated by the insurance agreement to effect
payment. The insurer and the policyholder shall be liable as joint and several
debtors as concerns the obligation incumbent on the insurer to effect payment
emanating from the insurance agreement.
(1) The health insurance
may be taken out for the policyholder or for another person. The insured person
shall be that person for whom the insurance is taken out.
(2) Where the knowledge
and the conduct of the policyholder are of legal significance under this Act,
in the case of insurance for another person, account shall also be taken of the
knowledge and conduct of that person.
(3) Each person with a
place of residence in Germany shall be obligated to conclude and maintain with
an insurance company licensed to operate in Germany for himself and for the
persons legally represented by him, insofar as they are not themselves able to
conclude contracts, a cost-of-illness insurance which comprises at least a cost
refund for outpatient and inpatient treatment and in which the absolute and
percentage excesses for outpatient and inpatient treatment which have been
agreed for services covered by the respective tariff for each person to be
insured are limited to an amount of Euro 5,000 per calendar year; for persons
entitled to medical expenses assistance, the possible excesses emerge through
the analogous application of the percentage not covered by the rate of medical
expenses assistance to the maximum amount of Euro 5,000. The obligation in
accordance with the first sentence shall not apply to persons who
2. have a right to free treatment, to medical expenses
assistance or to comparable rights to the extent of the respective entitlement,
or
4. are recipients of recurrent benefits in accordance with the
Third, Fourth, Sixth, and Seventh Chapters of Social Code Book XII for the
duration of the receipt of such benefits and during periods of an interruption
of the receipt of benefits of less than one month if the receipt of benefits
commenced prior to 1 January 2009.
A cost-of-illness
insurance contract agreed prior to 1 April 2007 shall be deemed to meet the
requirements of the first sentence.
(4) If conclusion of
contract is applied for later than one month after emergence of the obligation
in accordance with subsection (3), first sentence, a premium supplement
shall be payable. This shall be one month’s contribution for each further month
of non-insurance commenced, from the sixth month of non-insurance one-sixth of
a month’s contribution for each further month of non-insurance commenced. If it
is impossible to ascertain the duration of non-insurance, it shall be presumed
that the insured party was not insured for at least five years. The premium
supplement shall be payable once in addition to the recurrent premium. The
policyholder may demand respite from the insurer in respect of the premium
supplement if immediate payment would have an unusually serious effect on him
and the insurer’s interests can be satisfied by agreeing an appropriate payment
by instalments. Interest shall be applied to the amount to which the respite
relates.
(5) The insurer shall be
obligated to grant insurance in the basic tariff in accordance with
section 12 (1a) of the Insurance Supervision Act
b) within six months of commencement of the possibility to
change envisioned in Social Code Book V in the context of their voluntary
insurance agreement,
2. to all persons with a place of residence in Germany who are
not subject to obligatory insurance in statutory health insurance, do not
belong to the group of individuals in accordance with no. 1 or
subsection (3), second sentence, nos. 3 and 4, and have not already agreed
private cost-of-illness insurance with an insurance company licensed to operate
in Germany satisfying the obligation in accordance with subsection (3),
3. to persons who are entitled to medical expenses assistance or
who have comparable entitlements, insofar as they require supplementary
insurance protection to meet the obligation in accordance with
subsection (3), first sentence,
4. to all persons with a place of residence in Germany who have
agreed private cost-of-illness insurance within the meaning of
subsection (3) with an insurance company licensed to operate in Germany
and whose contract is concluded subsequent to 31 December 2008.
If the private
cost-of-illness insurance contract was concluded prior to 1 January 2009, on
change or termination of the contract, the conclusion of a contract in the
basic tariff can be demanded with the policyholder’s own or with another
insurance company, old age reserves being carried forward in accordance with
section 204 (1) only until 30 June 2009. The application must already be
accepted if in case of termination of a contract with another insurer
termination in accordance with section 205 (1), first sentence, did not
yet take effect. The application may only be rejected if the applicant was
already insured by the insurer and the insurer
2. has rescinded the contract of insurance because of an
intentional breach of the obligation to provide information prior to conclusion
of contract.
(6) If the policyholder
is in arrears in respect of an insurance satisfying the obligation in
accordance with subsection (3) with payment in the amount of premium
shares for two months, the insurer shall issue him with a reminder. If after
two weeks after receipt of the reprimand the arrears are still higher than the
premium share for one month, the insurer shall determine suspension of the
benefits. Suspension shall come into effect three days after receipt of this
notification by the insured party. This shall be conditional on the
policyholder having been informed of this consequence in the reprimand in
accordance with the first sentence. Suspension shall be terminated when all and
any arrears and premium shares incurred for the time of suspension have been
paid or if the policyholder or the insured person become in need of assistance
within the meaning of Social Code Books II or XII; need of assistance shall be
certified on request of the entitled person by the competent funding
organisation in accordance with Social Code Books II or XII. During the period
of suspension, the insurer shall be liable exclusively for expenses necessary
to treat acute illness and pain, as well as in case of pregnancy and maternity.
The insurer may note information regarding the suspension of the entitlement on
an electronic health card in accordance with section 291a (1a) of Social
Code Book V. Over and above this, the policyholder shall pay a late payment
charge of one percent of the contribution arrears for each month of arrears
commenced in place of interest on arrears. If the outstanding contribution
shares, late payment charges and collection costs have not been paid in
full within one year of commencement of suspension, insurance in the basic
tariff shall be continued. The sixth sentence shall remain unaffected.
(7) In case of insurance
in the basic tariff in accordance with section 12 of the Insurance
Supervision Act, the insurance company may demand additional insurances to be
suspended if and for as long as an insured person is dependent on halving the
contribution in accordance with section 12 (1c) of the Insurance
Supervision Act.
(1) Insofar as the
insurance cover is granted in accordance with the principles of indemnity
insurance, sections 74 to 80 and sections 82 to 87 shall apply.
Sections 23 to 27 and section 29 shall not apply to health insurance.
Section 19 (4) shall not apply to health insurance if the policyholder is
not responsible for the breach of the duty of disclosure. Notwithstanding
section 21 (3), first sentence, the time limit for asserting the insurer's
rights shall be three years.
(2) If the policyholder
or an insured person is entitled to the repayment of remuneration paid without
legal basis to the provider of services for which the insurer has paid
compensation on the basis of the contract of insurance, section 86 (1) and
(2) shall apply mutatis mutandis.
(3) Sections 43 to
48 shall apply to health insurance with the proviso that only the insured
person may demand payment of the insurance benefit if the policyholder has
designated him in writing to the insurer as the beneficiary of the insurance
benefit; such designation may be revocable or irrevocable. Where this condition
is not met, only the policyholder may demand payment of the insurance benefit.
The insurance policy need not be presented.
(1) Health insurance
which may wholly or partially substitute for health and long-term nursing care
insurance cover provided for in the statutory social insurance system
(substitutive health insurance) shall be for an indefinite period, unless
subsections (2) and (3) and sections 196 to 199 provide otherwise.
Where the non-substitutive health insurance cover is provided in the manner of
life insurance, the first sentence shall apply mutatis mutandis.
(2) In the case of
vocational training, overseas, travel and residual debt health insurance, a
period of contract may be agreed.
(3) In the case of
health insurance for a person with a temporary residence permit for Germany,
agreement may be reached to the effect that the insurance will expire after
five years at the latest. If a shorter term has been agreed, a similar new
contract may only be concluded with a maximum term that does not exceed five
years when added to the term of the expired contract; this shall also apply if
the new contract is concluded with another insurer.
(1) In the case of daily
sickness allowance insurance, it may be agreed that the insurance expires when
the insured person reaches the age of 65. The policyholder may in such cases
demand that the insurer accept an application to take out a new daily sickness
allowance to commence after he reaches the age of 65 and to expire when he
reaches the age of 70 at the latest. The insurer shall notify the policyholder
of this right in writing six months at the earliest before the insurance
expires, enclosing the text of this provision. If the application is made
before two months have elapsed after the policyholder reaches the age of 65,
the insurer shall grant the insurance cover without risk assessment or
qualifying periods insofar as the insurance cover is not higher or more
comprehensive than under the previous tariff.
(2) If the insurer has
not informed the policyholder that the insurance will expire in accordance with
subsection (1), third sentence, and the application is made before the
policyholder reaches the age of 66, subsection (1), fourth sentence, shall
apply mutatis mutandis, whereby the insurance shall commence when the insurer
receives the application. If the insured event has already occurred before the
insurer receives the application, the insurer shall not be obligated to effect
payment.
(3) Subsection (1),
second and fourth sentences, shall apply mutatis mutandis if immediately after
an insurance is taken out in accordance with subsection (1), fourth
sentence, or subsection (2), first sentence, an application for a new
daily sickness allowance insurance is made which expires when the policyholder
reaches the age of 75 at the latest.
(1) If qualifying
periods are agreed, these may not exceed three months as general qualifying
periods in respect of cost of illness, daily hospital allowance insurance and
daily sickness allowance insurance and eight months as special qualifying
periods in respect of childbirth, psychotherapy, dental treatment, dental
prostheses and orthodontics. In the case of long-term nursing care insurance,
the qualifying period may not exceed three years.
(2) As regards persons
leaving the statutory health insurance system or who have left another contract
relating to cost-of-illness insurance, account shall be taken of their
uninterrupted period of insurance when calculating the qualifying period,
insofar as the application for the insurance is made two months at the latest
after the end of the previous insurance to commence immediately thereafter.
This shall also apply to persons leaving the public sector with an entitlement
to the health care allowance for public servants.
(1) If at least one
parent has health insurance cover on the day on which their child is born, the
insurer shall be obligated to insure this person’s new-born from the completion
of the birth without a risk premiums and qualifying periods if the application
for the insurance is made retroactively two months at the latest after the day
on which the child was born. This obligation shall only exist insofar as the
insurance cover applied for in respect of the new-born is not higher and not
more comprehensive than that of the insured parent.
(2) Adoption shall be
equivalent to the birth of a child insofar as the child is still under age at
the time of the adoption. Where a greater risk exists, the agreement of a risk
premium shall be permissible up to once the amount of the premium.
(3) A minimum period of
insurance for the parent may be agreed as the precondition for the insurance
cover for the new-born or the adopted child. This must not exceed three months.
(4) Subsections (1)
to (3) shall not apply to overseas and travel health insurance insofar as other
private or statutory health insurance cover is available in Germany or overseas
for the new-born or for the adopted child.
(1) In the case of
cost-of-illness insurance of an insured person entitled to a sickness allowance
in accordance with the principles of the public service, the contracting
parties may agree that the insurance will expire to the extent of the increase
of the allowance assessment rate when the insured person retires.
(2) If, in the case of
an insured person entitled to a sickness allowance in accordance with the
principles of the public service, the allowance assessment rate changes or the
entitlement to a sickness allowance lapses, the policyholder shall be entitled
to demand that the insurer adjust the insurance cover within the framework of
the existing cost of illness insurance tariffs so as to balance out the amended
allowance assessment rate or the discontinued entitlement to allowance. If the
application is made within six months after the change, the insurer shall grant
the amended insurance cover without a risk assessment or qualifying periods.
If the insured person
has the right to assert a claim against several parties obligated to effect
payment on account of the same insured event, the total compensation may not
exceed the total expenses.
The insurer shall not be
obligated to effect payment if the policyholder or the insured person
intentionally causes his own illness or his own accident.
The insurer shall be
obligated, at the request of the policyholder or of the insured person, to give
a physician or lawyer designated by him any information about and the right to
inspect expert opinions or statements which he has obtained in examining his
liability in respect of the need for a medical treatment. The right to
information may only be asserted by the person affected in each instance or by
his legal representative. If the policyholder has obtained the expert opinion
or the statement at the insurer's instigation, the insurer shall reimburse the
costs arising.
(1) In the case of a
health insurance where the premium is calculated in the manner of a life
insurance, the insurer may only demand payment of a premium calculated in
accordance with the technical bases of calculation under section 12,
section 12a and section 12e in conjunction with section 12c of
the Insurance Supervision Act. Other than with contracts in the basic tariff in
accordance with section 12 of the Insurance Supervision Act, the insurer
may agree an appropriate risk premium or release from obligation to effect
payment, taking account of an aggravation of the risk insured. A risk
assessment shall only be permissible in the basic tariff insofar as it is
necessary for purposes of equalisation in accordance with section 12g of
the Insurance Supervision Act or for subsequent tariff changes.
(2) If, in the case of
health insurance, the insurer's statutory right of termination is ruled out by
law or contract, the insurer shall be entitled, in the event of a not only
temporary change to one of the bases of calculation necessary for calculating
the premium, to also re-determine the premium in accordance with the adjusted
bases of calculation for existing insurance agreements insofar as an
independent trustee has reviewed the technical bases of calculation and has
agreed to the adjustment of the insurance premium. The amount of an excess may
also be adjusted and an agreed risk premium amended accordingly insofar as this
has been agreed. The relevant bases of calculation within the meaning of the
first and second sentences shall be the insurance benefits and the
probabilities of death. As regards the adjustment of insurance premiums,
additional premiums and excesses, as well as their review and approval by the
trustee, section 12b (1) to (2a) of the Insurance Supervision Act in
conjunction with a statutory ordinance enacted on the basis of section 12c
of the Insurance Supervision Act shall apply.
(3) If, in the case of
health insurance, the insurer's statutory right of termination is ruled out by
law or contract within the meaning of subsection (1), first sentence, the
insurer shall be entitled to adjust the general terms and conditions of
insurance and the conditions of the tariff to the new conditions in the case of
a non-temporary change in the conditions in the health system if the changes appear
necessary to sufficiently safeguard the policyholders' concerns and an
independent trustee has reviewed the conditions on which the change is based
and has confirmed their appropriateness.
(4) If a provision in
the insurer's general terms and conditions of insurance has been declared void
by a decision of one of the highest courts or by a final administrative act,
section 164 shall apply.
(5) The re-assessment of
the premium and the changes in accordance with subsections (2), (3) shall
become effective from the start of the second month after the policyholder has
been informed of the re-assessment or the changes and of the relevant grounds.
1. accept applications to change to other tariffs with
equivalent insurance cover, taking into account the rights acquired under the
contract and old age reserves; insofar as the benefits payable according to the
tariff to which the policyholder wishes to change are higher or more
comprehensive than those in the previous tariff, the insurer may demand to be
released from obligation to effect payment for the additional benefit or may
demand an appropriate risk premium and, thus, a qualifying period; the
policyholder may avoid the agreement of a risk premium and a qualifying period
by agreeing release from obligation to effect payment in respect of the
additional benefits; in case of a change from the basic tariff into another
tariff, the insurer may also demand the risk premium which was calculated on
conclusion of contract; the change to the basic tariff of the insurer allowing
for the rights acquired from the contract and of the old age reserve shall only
be possible if
b) the policyholder has reached the age of 55 or has not yet
reached the age of 55, but meets the prerequisites for a claim to a pension
from the statutory pensions insurance and has applied for this pension or draws
a pension in accordance with civil service law or comparable regulations, or is
in need of assistance in accordance with Social Code Books II or XII, or
c) the existing cost-of-illness insurance was concluded
subsequent to 1 January 2009 and the change into the basic tariff was applied
for prior to 1 July 2009;
2. in case of termination of the contract and simultaneous conclusion
of a new contract which can completely or partly replace the health insurance
protection provided for in the statutory social insurance system, with
another health insurer
a) assign the calculated old age reserve of the part of the
insurance the benefits of which correspond to the basic tariff to the new
insurer insofar as the terminated cost-of-illness insurance was concluded
subsequent to 1 January 2009;
b) in case of conclusion of a contract in the basic tariff
assign the old age reserve calculated of the part of the insurance the benefits
of which correspond to the basic tariff to the new insurer insofar as the
terminated cost-of-illness insurance was concluded prior to 1 January 2009 and
termination took place prior to 1 July 2009.
Insofar as the benefits
according to the tariff from which the policyholder wishes to change are higher
or more comprehensive than those in the basic tariff, the policyholder may
require the previous insurer to agree an additional tariff in which the old age
reserve extending beyond the basic tariff is to be accounted for. It shall not
be possible to waive the entitlements in accordance with the first and second
sentences.
(2) In the case of
termination of the contract on private compulsory long-term care insurance and
simultaneous conclusion of a new contract with another insurer, the
policyholder may require the previous insurer to transfer the old age reserve
as calculated for him to the new insurer. It shall not possible to waive this
entitlement.
(4) Insofar as the
health insurance is calculated in the form of a life insurance, the
policyholders and the insured person shall have the right to continue a
terminated insurance contract in the form of a coverage-retention policy.
(1) Unless a minimum
period of insurance has been agreed for the cost-of-illness and daily hospital
allowance insurance, the policyholder may terminate a health insurance
agreement which has been concluded for a period of more than one year to the
end of the first year or each subsequent year, subject to a notice period of
three months. The termination may be limited to individual insured persons or
tariffs.
(2) If an insured person
is obligated by operation of law to take out health or long-term nursing care
insurance, the policyholder may terminate a cost-of-illness, daily sickness
allowance insurance and long-term nursing care insurance as well as the
prospective entitlement insurance which exists for these insurances
retroactively within three months of the day on which the obligation to take
out the insurance arose. The termination of the contract shall be void if the
policyholder does not provide proof to the insurer within two months of the
obligation to take out insurance after the insurer has asked him to do so in
writing, unless the policyholder is not responsible for missing this deadline.
If the policyholder avails himself of the right to terminate the contract, the
insurer shall only be entitled to the premium up until that point in time.
Subsequently, the policyholder may terminate the insurance agreement to the end
of that month in which he provides proof of his obligation to take out the
insurance. The statutory right to family insurance or the non-temporary right
to a health care allowance for public servants resulting from a public service
contract or similar employment status shall be equivalent to the obligation to
take out insurance.
(3) If the contract of
insurance provides that when the policyholder reaches a certain age or when
other preconditions referred to therein are met the premium for another age or
another age group applies or the premium is calculated taking old age reserves
into account, the policyholder may terminate the insurance agreement with
regard to the affected insured person within two months after the change with
effect from the time it became effective if the premium increases as a result.
(4) If the insurer
increases the insurance premium or reduces a benefit on account of an
adjustment clause, the policyholder may terminate the insurance policy with
regard to the affected insured person within one month after receipt of the
communication of the change with effect from such time as the increase in the
premium or the reduction of the benefits is to take effect.
(5) If the insurer has
reserved the right to limit the termination of a contract to individual insured
persons or tariffs and he avails himself of this possibility, the policyholder
may demand that the remaining share of the insurance be rescinded within two
weeks after receipt of the termination to such time as the termination takes
effect. The first sentence shall apply mutatis mutandis if the insurer declares
the avoidance or rescission of the policy possible only for individual insured
persons or tariffs. In such cases the policyholder may demand that the contract
be rescinded to the end of the month in which he receives the insurer's
declaration.
(6) Notwithstanding
subsections (1) to (5), the policyholder may only terminate an insurance
which complies with an obligation under section 193 (3), first sentence,
if he concludes a new contract with another insurer for the insured person
which complies with this obligation. Termination shall not become effective
until the policy holder proves that the insured person is insured by a new
insurer without interruption.
(1) Any termination of a
cost-of-illness insurance which complies with an obligation under
section 193 (3), first sentence, shall be ruled out by the insurer. Over
and above this, the insurer may not give statutory notice of termination on
cost-of-illness, daily sickness allowance insurance and long-term nursing care
insurance if the insurance can completely or partly replace the health
insurance protection or long-term nursing care insurance provided for in
the statutory social insurance system. It shall also be ruled out for daily
hospital allowance insurance taken out alongside a full cost of illness
insurance. Notwithstanding the second sentence, the insurer may terminate a
daily sickness allowance insurance for which there is no statutory right to an
allowance towards contributions from an employer to the end of each insured
year in the first three years, subject to a notice period of three months.
(2) If, in the case of
daily hospital allowance insurance or partial cost-of-illness insurance, the
preconditions under subsection (1) are not met, the insurer may only
terminate the insurance agreement to the end of the insurance year within the
first three insurance years. The notice of termination shall be three months.
(3) Where a
cost-of-illness insurance or a long-term nursing care insurance is effectively
terminated by the insurer on account of delayed payment by the policyholder,
the insured persons shall be entitled to declare that the insurance agreement
will continue, and name the future policyholder; the premium shall be payable
from such time as the insurance agreement continues. The insurer shall inform
the insured persons in writing about the termination and the right under the
first sentence. This right shall lapse two months after the time when the
insured person learns of this right.
(4) The statutory notice
of termination of a group contract of insurance which covers the risk of
illness by the insurer shall be permissible if the insured persons can continue
the health insurance taking into account the rights acquired under the contract
and the old age reserve, insofar as it has been set aside, at the terms and
conditions of the individual insurance. Subsection (3), second and third
sentences, shall apply mutatis mutandis.
(1) If the insurance
agreement ends upon the death of the policyholder, the insured persons shall be
entitled to declare the continuation of the insurance agreement by appointing
the future policyholder within two months following the death of the
policyholder.
(2) If the policyholder
terminates the insurance agreement overall or for individual insured persons,
subsection (1) shall apply mutatis mutandis. The termination shall only be
effective if the insured person has learned of the declaration of termination.
If the terminated contract is a group contract of insurance and no new
policyholder is designated, the insured persons shall be entitled to continue
the insurance agreement taking account of the rights acquired under the
contract and the old age reserves, insofar as they have been set aside, at the
same terms and conditions as the individual contract. The right under the third
sentence shall lapse two months after the time when the insured persons learn
of this right.
(3) If an insured person
moves his habitual place of residence to another Member State of the European
Union or to another state party to the Agreement on the European Economic Area,
the insurance agreement shall continue, with the proviso that the insurer shall
only remain liable up to the maximum benefits which he would have to have paid
were his place of residence still in Germany.
Agreements deviating
from sections 194 to 199 and sections 201 to 207 to the detriment of
the policyholder or the insured person shall not be permitted. As regards the
termination of the contract by the policyholder in accordance with
section 205, the contracting parties may agree that this must be made in
writing.
The provisions of this
Act shall not apply to reinsurance and insurance against risks in shipping
(maritime insurance).
(1) The restrictions on
the freedom of contract under this Act shall not apply to jumbo risks or to
open policies.
1. risks of the transport and liability insurance indicated at
Nos. 4 to 7, 10 (b) as well as Nos. 11 and 12 of the Annex to
the Insurance Supervision Act, Part A,
2. risks of the credit and suretyship insurance indicated at
Nos. 14 and 15 of the Annex to the Insurance Supervision Act, Part A,
where the policyholders exercise a commercial, mining or freelance activity if
the risks are relevant thereto, or
3. risks of the property, liability and other indemnity
insurance indicated at Nos. 3, 8, 9, 10, 13 and 16 of the Annex to the
Insurance Supervision Act, Part A, where the policy holders exceed at least two
of the following characteristics:
If the policyholder
belongs to a group of companies which must prepare a consolidated financial
statement in accordance with section 290 of the Commercial Code, in
accordance with section 11 of the Disclosure Act of 15 August 1969
(Federal Law Gazette I page 1189) in the respectively valid version or in
accordance with the requirements of the law of another Member State of the
European Community or of another Contracting Party to the Agreement on the
European Economic Area which concurs with the Seventh Council Directive
83/349/EEC of 13 June 1983 based on Article 54 (g) of the Treaty on
consolidated accounts (OJ L 193 of 18 July 1983, page 1) in the
respectively valid version, the figures contained in the consolidated financial
statement shall be material to the establishment of the size of the enterprise.
(1) Insofar as other
provisions have been agreed in the general terms and conditions of insurance
with the consent of the supervisory authority, sections 37, 38, 165, 166,
168 and 169 shall not apply to
1. insurances with pension funds within the meaning of
section 118b (3) and (4) of the Insurance Supervision Act,
2. insurances taken out with an association recognised as a
small association within the meaning of the Insurance Supervision Act,
1. sections 6 to 9, 11, 150 (2) to (4) and section 152
(1) and (2); with regard to distance contracts within the meaning of
section 312b (1) and (2) of the German Civil Code this shall not apply to
sections 7 to 9 and section 152 (1) and (2);
2. section 153, insofar as other provisions have been
agreed in the general terms and conditions of insurance with the consent of the
supervisory authority; section 153 (3), first sentence, shall not apply to
funds paying funeral benefits.
(3) Where other
provisions have been agreed for insurances with small contributions within the
meaning of subsection (1) nos. 3, 4, their effectiveness cannot be
challenged by invoking the fact that they are not insurances with small
contributions.
If an employment
relationship continues during parental leave without payment in accordance with
section 1a (4) of the Company Pensions Act and a life insurance policy
taken out by the employer for the benefit of the employee is converted into a
fully paid-up insurance on account of the non-payment of insurance premiums due
during parental leave, the employee may demand within three months of the end
of parental leave that the insurance be continued at the terms and conditions
agreed before the conversion.
(1) The insurer may only
acquire personal health-related data from doctors, hospitals and other health
institutions, care homes and nursing staff, other insurers of persons and
statutory health insurers as well as social insurances for occupational
accidents and public authorities; this shall only be permissible insofar as the
knowledge of the data is necessary to assess the risk to be insured or the
liability, and the affected person has given his consent.
(2) The consent required
in accordance with subsection (1) may be given prior to the submission of
the contractual acceptance. The affected person shall be informed prior to the
data referred to in subsection (1) being acquired; he may object to the
data being acquired.
(3) The affected person
may demand at any time that the data only be acquired if his consent has been
given in each individual case.
(4) The affected person
shall be notified of these rights and shall be notified of the right to object
in accordance with subsection (2) when being instructed.
(1) The Federal Ministry
of Justice may, in consultation with the Federal Ministry of Finance, the
Federal Ministry of Economics and Technology and the Federal Ministry of Food,
Agriculture and Consumer Protection, authorise private-law institutions to act
as conciliation boards for the extra-judicial settlement of disputes
1. in the case of contracts of insurance with consumers within
the meaning of section 13 of the German Civil Code,
2. between insurance intermediaries or insurance advisers and
policyholders in connection with the mediation of contracts of insurance.
This authorisation shall
be announced in the Federal Gazette. Those concerned may apply to these
conciliation boards; the right to appeal to the courts shall remain unaffected.
(2) Private-law
institutions may be authorised to act as a conciliation board if it is
independent in respect of providing its answers and suggestions or making
decisions and is not bound by any instructions and can fulfil its tasks from an
organisational and professional point of view.
(3) The authorised
arbitration boards shall be obligated to respond to each complaint regarding an
insurer or insurance intermediary, an intermediary in accordance with
section 66 and insurance adviser.
(4) The authorised
arbitration boards may levy a fee from the insurance intermediary, intermediary
in accordance with section 66 or insurance adviser. In the case of
obviously improper complaints, a fee may also be levied from the policyholder.
The amount of the fee must be proportionate to the recognised conciliation board's
expenses.
(5) Insofar as no
private-law institution has been authorised to act as a conciliation board, the
Federal Ministry of Justice, in consultation with the Federal Ministry of
Finance, the Federal Ministry of Economics and Technology and the Federal
Ministry of Food, Agriculture and Consumer Protection, may assign the tasks of
the arbitration board to one of the higher federal authorities or to a federal
institute by statutory ordinance without the consent of the Bundesrat,
and may regulate its procedures and the levying of fees and expenses.
(1) In respect of actions brought on the basis of the
contract of insurance or the mediation of a contract of insurance, that local
court in whose district the policyholder has his place of residence at the time
of the filing of the action shall also have jurisdiction, failing that, his
habitual place of residence. In respect of actions brought against the
policyholder, only this court shall have jurisdiction.
(2) Section 33 (2) of the Code of Civil Procedure
shall not apply to cross-actions brought by the other party.
(3) An agreement deviating from subsection (1)
shall be permitted in the event that the policyholder moves his domicile or
habitual place of residence outside of the scope of this Act after signing the
contract or his domicile or habitual place of residence is unknown at such time
as the action is filed.
If an insurance contract with the individual insurers
associated together with Lloyds has not been concluded via a branch office in
the area of application of this Act, and if there is a domestic venue, claims
arising therefrom may be asserted against the authorised signatory of the syndicate
named in the insurance policy first, or against an insurer designated by the
latter; a title acquired thereby shall apply for and against all insurers which
are party to the insurance contract.
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Notice regarding revocation
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Right of revocation
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You may revoke your contractual acceptance within [14] 1 days in text
form without stating reasons (e.g. letter, fax, e-mail). The period begins
after you have received the insurance policy, the terms of contract including
the general terms and conditions of insurance, the further information
pursuant to section 7 subsections (1) and (2) of the Insurance
Contract Act in conjunction with sections 1 to 4 of the Information
Obligation Ordinance on the Insurance Contract Act (VVG-Informationspflichtenverordnung)
and this notice in each case in text form 2. Dispatching the revocation in
good time suffices to meet the revocation deadline. The revocation is to be addressed to: 3
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Consequences of revocation
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Insurance protection will be terminated in the event of effective
revocation, and we will refund to you the share of the premiums incurred for
the period subsequent to receipt of the revocation if you have agreed to
insurance protection commencing prior to the end of the revocation
period. We may retain the share of the premium accounted for by the period
until receipt of revocation in this case; this is [an amount of...] 4. 5 The
refund of repayable amounts will take place promptly, at the latest 30 days
after receipt of the revocation. If insurance protection does not
commence prior to the end of the revocation period, effective revocation will
cause payments received to be refunded and benefits drawn (e.g. interest) to
be surrendered.
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Particular remarks
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Your right of revocation ceases to apply if, at your explicit request,
the contract has been fully performed both by you and by ourselves prior to
your exercising your right of revocation.
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(Place), (date), (signature of the policyholder) 6
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Hints for drafting:
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1
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The supplement in brackets for the life insurance reads as follows: “30”.
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2
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With contracts in electronic business
dealings (section 312g subsection (1), sentence 1, of the Civil
Code), the following is to be inserted at the end of the sentence before the
full stop: “ , but not prior to performance of our obligations in
accordance with section 312g subsection (1), sentence 1, of the
Civil Code in conjunction with Article 246 section 3 of the Introductory
Act to the Civil Code”.
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3
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The following is to be inserted here:
name/firm name and address of the addressee of the revocation at which
documents may be served. Additionally, the following may be stated: fax
number, e-mail address and/or, if the policyholder receives a confirmation of
his/her revocation declaration to the insurer, also an Internet address.
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4
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The amount may also be denominated in
other documents, such as in the application; the supplement in brackets will
then be worded as follows, depending on the structure: “the amount designated
in the application /in ... on page .../at no. ... ”.
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5
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In case of a life insurance policy, the
following sentence is to be inserted where appropriate: “We will pay to you
the surrender value, including surplus sharing in accordance with
section 169 of the Insurance Contract Act.”
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6
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The place, date and signature line may
not be necessary. In this case, this information is to be replaced either by
the words “End of the revocation notice” or by the words “Yours, [insert:
firm name of insurer]”.
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